EXHIBIT 99.2
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "Agreement"), made as of March 27, 2003,
among MAINSOURCE FINANCIAL GROUP, INC., an Indiana corporation ("Parent"), FCBY
MERGER CORPORATION, an Indiana corporation and a wholly owned subsidiary of
Parent ("Merger Sub"), and FIRST COMMUNITY BANCSHARES, INC. , an Indiana
corporation (the "Company"). The members of the Company's Board of Directors,
Albert R. Jackson, Jr., Albert R. Jackson III, Frank D. Neese, Roy Martin
Umbarger and Merrill M. Wesemann, M.D. (the "Affiliate Shareholders"), solely in
their non-fiduciary capacities as shareholders of the Company and as
individuals, join in this Agreement for purposes of making the covenants and
agreements in Sections 5.9 and 5.10.
R E C I T A L S:
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A. The Boards of Directors of Parent, Merger Sub and the Company each
have determined that a business combination involving the merger of the Company
into Merger Sub is in the best interests of their respective companies and
shareholders and presents an opportunity for Parent and the Company and their
respective shareholders to achieve long-term strategic and financial benefits,
and accordingly have agreed to effect the merger provided for herein (the
"Merger") upon the terms and subject to the conditions set forth herein.
B. Parent, Merger Sub and the Company desire to make certain
representations, warranties, covenants and agreements in connection with the
Merger and to prescribe various conditions to the Merger.
C. Each Affiliate Shareholder wishes to join in this Agreement for
purposes of making the covenants and agreements set forth in Sections 5.9 and
5.10 to facilitate the execution of this Agreement and the consummation of the
Merger and the other transactions contemplated hereby, and to acknowledge and
agree that, in consideration for making such covenants and performing such
agreements, he will benefit from a smooth and orderly transition in the
ownership and control of the Company and its Subsidiaries as well as from any
consideration he will be entitled to receive as a shareholder of the Company as
a result of the Merger, and that such consideration is adequate for making such
covenants and performing such agreements. Each Affiliated Shareholder also
wishes to hereby acknowledge and agree that he has carefully read and considered
the provisions of Sections 5.9 and 5.10 with counsel and that such provisions
are fair and reasonable and may be deemed reasonably required by Parent for the
protection of its interests in executing this Agreement, consummating the Merger
and other transactions contemplated hereby, and receiving the economic benefits
from the Merger expected by Parent following the Merger.
A G R E E M E N T:
- - - - - - - - - -
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
ARTICLE I
THE MERGER
1.1 Effective Time of the Merger. Subject to the terms and conditions
of this Agreement and in reliance upon the representations, warranties,
covenants and agreements contained herein, at the Effective Time (as defined
below) the Company will merge with and into Merger Sub (the "Merger"), with
Merger Sub being the surviving corporation in the Merger. (As used in this
Agreement, "Surviving Corporation" shall mean Merger Sub.) The parties will
cause the Merger to be consummated by filing articles of merger or other
appropriate documents (in any such case, the " Articles of Merger") with the
Secretary of State of the State of Indiana in such form as required by, and
executed in accordance with the provisions of, the Indiana Business Corporation
Law ("IBCL"), as soon as practicable on or after the Closing Date (as defined in
Section 1.2). The Merger shall become effective at the time specified in the
Articles of Merger (the time the Merger becomes effective being the "Effective
Time").
1.2 Closing . The closing of the Merger (the "Closing") will take place
at 10:00 a.m. on a date to be specified by the parties, which shall be the first
business day that is five business days after satisfaction of the latest to
occur of the conditions set forth in Sections 6.1, 6.2(b) and 6.3(b) (other than
the delivery of the officers' certificates referred to in Sections 6.2(b) and
6.3(b)), provided that the other closing conditions set forth in Article VI have
been met or waived as provided in Article VI at or prior to the Closing (the
"Closing Date"), at the offices of Parent at 210 N. Broadway, Greensburg,
Indiana, unless another time, date or place is agreed to in writing by the
parties hereto.
1.3 Effects of the Merger. At and after the Effective Time, the Merger
will have the effects set forth in Section 23-1-40-6 of the IBCL. Without
limiting the generality of the foregoing, and subject thereto, at the Effective
Time all the property, rights, privileges, powers and franchises of the Company
and Merger Sub shall vest in the Surviving Corporation, and all debts,
liabilities, obligations, restrictions, disabilities and duties of the Company
and Merger Sub shall become the debts, liabilities, obligations, restrictions,
disabilities and duties of the Surviving Corporation.
1.4 Articles of Incorporation; Bylaws.
(a) Articles of Incorporation. At the Effective Time, the
articles of incorporation of Merger Sub as in effect immediately prior to the
Effective Time shall be the articles of incorporation of the Surviving
Corporation until thereafter changed or amended as provided by applicable law
and such articles of incorporation.
(b) Bylaws. The bylaws of Merger Sub as in effect immediately
prior to the Effective Time shall be the bylaws of the Surviving Corporation
until thereafter changed or amended as provided by applicable law, the articles
of incorporation of the Surviving Corporation and such bylaws.
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1.5 Directors and Officers. The directors and officers of Merger Sub
shall be the directors and officers of the Surviving Corporation until duly
changed in accordance with applicable law.
ARTICLE II
EFFECT OF THE MERGER ON THE SHARES OF THE COMPANY
AND MERGER SUB; EXCHANGE OF CERTIFICATES
2.1 Effect on Capital Stock . At the Effective Time, by virtue of the
Merger and without any action on the part of the holder of any common stock,
without par value, of the Company ("Company Common Stock"):
(a) Cancellation of Certain Shares. All Company Common Stock that is
owned by the Company as treasury stock or by Parent, Merger Sub or any other
Subsidiary (as defined in Section 3.1(a)) of Parent (other than shares in trust
accounts, managed accounts and the like that are beneficially owned by third
parties (any such shares, "trust account shares")) shall be canceled and shall
cease to exist and no cash or other consideration shall be delivered in exchange
therefor.
(b) Conversion of Merger Sub Common Stock. Each of the shares of
common stock of Merger Sub ("Merger Sub Common Stock") issued and outstanding
immediately prior to the Effective Time of the Merger shall be converted into
1,000 shares of common stock of the Surviving Corporation, without par value.
(c) Conversion of Company Common Stock. Each of the shares of Company
Common Stock issued and outstanding immediately prior to the Effective Time of
the Merger shall be converted into the right to receive $21.00 (the "Cash
Amount"), all in accordance with Section 2.2.
(d) Cancellation of Options to Acquire Company Common Stock. As of the
Effective Time, each of the options to purchase shares of Company Common Stock
that is outstanding immediately prior to the Effective Time (a "Company Option")
shall be canceled and converted into the right to receive in cash an amount
equal to the Cash Amount less the exercise price of such Company Option
immediately prior to the Effective Time.
(e) Dissenting Shares.
(i) Each outstanding share of Company Common Stock, the holder
of which has demanded and perfected his demand for payment of the fair value of
his shares in accordance with Chapter 44 of the IBCL ("Chapter 44 ") and has not
effectively withdrawn or lost his right to such payment ("Dissenting Shares")
shall not be converted into or represent a right to receive the Cash Amount
pursuant to Section 2.1(c) hereof, and the holder thereof shall be entitled only
to such rights as are granted by Chapter 44. Each holder of Dissenting Shares
who becomes entitled to payment for his Company Common Stock pursuant to Chapter
44 shall receive
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payment therefor from the Surviving Corporation from funds provided by Parent
(but only after the amount thereof shall have been agreed upon or finally
determined pursuant to Chapter).
(ii) If any holder of Company Common Stock who demands
appraisal of his shares under Chapter 44 shall effectively withdraw or lose
(through failure to perfect or otherwise) his right to payment, such holder
shall be entitled to receive the Cash Amount for each of his shares of Company
Common Stock, without interest.
(iii) The Company shall give Parent (A) prompt notice of any
written demands for payment, withdrawals of demands for payment and any other
instruments served pursuant to Chapter 44 received by the Company, and (B) the
opportunity to participate in all negotiations and proceedings with respect to
demands for appraisal under Chapter 44. The Company will not voluntarily make
any payment with respect to any demands for payment and will not, except with
the prior written consent of Parent, settle or offer to settle any such demands.
Parent will, to the extent necessary, make available to the Surviving
Corporation sufficient funds to enable the Surviving Corporation to pay for the
Dissenting Shares using funds not acquired from the Company.
2.2 Exchange of Company Certificates and Options For Cash.
(a) Exchange Agent. Parent shall authorize MainSource Bank,
Greensburg, Indiana (or such other person or persons as shall be acceptable to
Parent and the Company), to act as exchange agent hereunder (the "Exchange
Agent"). As soon as practicable, but not later than one business day after the
Effective Time, Parent shall deposit with the Exchange Agent, in trust for the
holders of certificates which immediately prior to the Effective Time
represented Company Common Stock converted in the Merger (the "Company
Certificates") and the holders of Company Options, for exchange in accordance
with this Article II, an amount in cash equal to the sum of (i) the Cash Amount
multiplied by the number of shares of Company Common Stock that are converted
into the right to receive cash in the Merger pursuant to Section 2.1(c) and (ii)
the Cash Amount multiplied by the number of shares of Company Common Stock that
are subject to outstanding unexercised Company Options at the Effective Time
that are converted into the right to receive cash in the Merger pursuant to
Section 2.1(d), less the aggregate exercise price for all Company Options (such
monies, together with any dividends or distributions with respect thereto in
accordance with Section 2.2(c), being hereinafter referred to as the "Exchange
Fund"). As soon as practicable after the Effective Time, the Exchange Agent
shall mail to each recordholder of a Company Certificate and/or a Company Option
a letter of transmittal (which shall specify that delivery shall be effected,
and risk of loss and title to the Company Certificates shall pass, only upon the
actual delivery of such letter of transmittal to the Exchange Agent and shall
contain instructions for use in effecting the surrender of the Company
Certificates in exchange for the consideration described in the next sentence).
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(b) Exchange Procedures.
(i) Payment of Cash. At or after the Effective Time and upon
surrender for cancellation to the Exchange Agent by a recordholder of all
Company Certificates representing shares converted into the right to receive
cash pursuant to Section 2.1(c) and Company Options, if any, converted into the
right to receive cash pursuant to Section 2.1(d), together with a letter of
transmittal duly executed and in proper form, such holder shall be entitled to
receive in exchange therefor a check in immediately available Indianapolis,
Indiana funds for an amount equal to the sum of (i) the Cash Amount for each
share of Company Common Stock so converted pursuant to Section 2.1(c) and (ii)
the Cash Amount for each Company Option converted pursuant to Section 2.1(d)
less the exercise price of such option.
(ii) Until Surrender of Company Certificates. Until Company
Certificates and Company Options have been surrendered and exchanged for cash as
herein provided, each outstanding Company Certificate and Company Option shall
be deemed at any time after the Effective Time to represent only the right to
receive upon such surrender cash pursuant to Section 2.2(b). No transfer taxes
shall be payable in connection with any such exchange, except that if any check
is to be issued in a name other than that in which the Company Certificate
and/or Company Option surrendered in exchange therefor is registered, it shall
be a condition of such exchange that the person requesting such exchange shall
pay to the Exchange Agent any transfer or other taxes required by reason of the
issuance of the check in a name other than that of the registered holder of the
Company Certificate and/or Company Option, or shall establish to the
satisfaction of the Exchange Agent that such tax has been paid or is not
applicable. Parent or the Exchange Agent shall be entitled to deduct and
withhold from the consideration otherwise payable pursuant to this Agreement to
any holder of Company Common Stock and/or Company Option such amounts as Parent
or the Exchange Agent are required to deduct and withhold under the Internal
Revenue Code of 1986, as amended (the "Code"), or any provision of state, local
or foreign tax law, with respect to the making of such payment. To the extent
that amounts are so withheld by Parent 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 Company Common Stock and/or Company Option in respect of
whom such deduction and withholding was made by Parent or the Exchange Agent. If
outstanding Company Certificates or Company Options are not surrendered or the
right to receive cash payment therefor not claimed prior to six years after the
Effective Time of the Merger (or, in any particular case, prior to such earlier
date on which such cash payment would otherwise escheat to or become the
property of any governmental unit or agency), the amount of the cash payment not
claimed, to the extent permitted by abandoned property or other applicable law,
shall become the property of Parent (and, to the extent not in its possession,
shall be paid over to it), free and clear of all claims or interest of any
person previously entitled thereto.
(c) No Further Ownership Rights in Company Common Stock and Company
Options. All cash paid upon conversion of Company Common Stock or Company
Options in accordance with the terms hereof shall be deemed to have been paid in
full satisfaction of all rights pertaining to such Company Common Stock and such
options, subject, however, to the Surviving Corporation's obligation to pay any
dividends or make any other distributions with a record date prior to the
Effective Time that may have been declared or made by the Company on Company
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Common Stock in accordance with the terms of this Agreement on or prior to the
Effective Time and which remain unpaid at the Effective Time. At the Effective
Time, the stock transfer books of the Company shall be closed to holders of
Company Common Stock immediately prior to the Effective Time and no transfer of
Company Common Stock by any such holder shall thereafter be made or recognized.
If, after the Effective Time, Company Certificates or Company Options are
presented to the Surviving Corporation for any reason, they shall be canceled
and exchanged as provided in this Article II.
(d) Termination of Exchange Fund. Any portion of the Exchange Fund that
remains undistributed to the shareholders of the Company for six months after
the Effective Time shall be delivered to Parent, upon demand, and any
shareholders or options holders of the Company who have not theretofore complied
with this Article II shall thereafter look only to Parent for payment of their
claim for cash.
(e) No Liability. Neither Parent, Merger Sub, the Company nor the
Surviving Corporation shall be liable to any holder of Company Common Stock for
any amount paid or property delivered in good faith to a public official
pursuant to any applicable abandoned property, escheat or similar law.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Company . The Company
represents and warrants to Parent and Merger Sub that:
(a) Organization, Standing and Power. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Indiana. Each of the Company's Subsidiaries is a corporation or
association duly organized and validly existing under the laws of the United
States or its state of incorporation or organization. Each of the Company and
its Subsidiaries has all requisite power and authority to own, lease and operate
its properties and to carry on its business as now being conducted, and is duly
qualified and in good standing to do business in each jurisdiction in which the
nature of its business or the ownership or leasing of its properties makes such
qualification necessary, except where the failure to be so qualified would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on the Company.
For purposes of this Agreement: "Material Adverse Effect" means, when
used with respect to Parent, the Company or the Surviving Corporation, as the
case may be, any state of facts, change, development, effect, condition or
occurrence (including any state of facts, change, development, effect, condition
or occurrence (i) relating to the economy or financial markets generally or (ii)
relating to the banking industry generally even if not specifically relating to
Parent, the Company or the Surviving Corporation) that is or could reasonably be
expected (so far as can be foreseen at the time) to be material and adverse to
the (A) business, (B) properties, (C) assets, (D) condition (financial or
otherwise), (E) value or (F) results of the operations, of Parent and its
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Subsidiaries taken as a whole, the Company and its Subsidiaries taken as a
whole, or the Surviving Corporation and its Subsidiaries taken as a whole, as
the case may be. For purposes of analyzing whether any state of facts, change,
development, effect, condition or occurrence constitutes a "Material Adverse
Effect" under this definition, the parties agree that (aa) materiality shall be
analyzed from the viewpoint of whether there is a significant likelihood that
the disclosure of such state of facts, change, development, effect, condition or
occurrence would be viewed by a reasonable investor (and not Parent in the case
of viewing the Company and its Subsidiaries or the Surviving Corporation, the
Company in the case of viewing Parent and its Subsidiaries, or any other
particular investor) as having significantly altered the total mix of
information available to such investor if the total mix of information about
Parent or the Company, as the case may be, had consisted solely of its SEC
Documents and the representations and warranties made by it in this Agreement
(other than any qualification as to materiality in Section 3.1(e) in the case of
the Company and Section 3.2(e) in the case of Parent), as such party's
representations and warranties are qualified by the Company Letter or Parent
Letter, as the case may be, (bb) the analysis of materiality shall not be
limited to the viewpoint of the long-term investor, (cc) each of the terms
contained in (A) through (F) above are intended to be separate and distinct, and
(dd) the words of the definition of "Material Adverse Effect" are intended to be
read literally without any regard to the holding or reasoning of IBP, Inc. v.
Tyson Foods, Inc., No. 18373, 2001 Del. Ch. LEXIS 81 (Del Ch June 18, 2001); and
"Subsidiary" means any corporation, partnership, joint venture or other
legal entity of which Parent or the Company, as the case may be (either alone or
through or together with any other Subsidiary), owns, directly or indirectly,
50% or more of the capital stock or other equity interest the holders of which
are generally entitled to vote for the election of the board of directors or
other governing body of such corporation, partnership, joint venture or other
legal entity.
(b) Capital Structure.
(i) The authorized capital stock of the Company consists of
4,000,000 shares of Common Stock, without par value ("Company Common Stock"),
and 1,000,000 shares of Preferred Stock, without par value (Company Preferred
Stock). As of the date hereof, there are 1,044,926 shares of Company Common
Stock outstanding, 34,700 shares of Company Common Stock reserved for issuance
under Company Options granted prior to the date of this Agreement, 90,910 shares
of Company Common Stock reserved for issuance under convertible debt securities
and no shares of Company Common Stock held by the Company in its treasury. There
are no shares of Preferred Stock outstanding, reserved for issuance or held by
the Company in its Treasury.
(ii) ) Except as set forth in the letter dated the date hereof
and delivered to Parent concurrent with the execution of this Agreement (the
"Company Letter"), which relates to this Agreement and is designated therein as
being the Company Letter, or in the Company SEC Documents (as defined in Section
3.1(d)) filed prior to the date of this Agreement, no bonds, debentures, notes
or other indebtedness having the right to vote (or convertible into or
exercisable for securities having the right to vote) on any matters on which
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shareholders of the Company may vote ("Voting Debt") are issued or outstanding.
All outstanding shares of Company Common Stock are, and any Company Common Stock
that may be issued pursuant to the exercise of any outstanding stock option or
convertible debt security will be, duly authorized, validly issued, fully paid
and nonassessable and not subject to preemptive rights.
(iii) Except as set forth in the Company Letter or the Company
SEC Documents filed prior to the date of this Agreement, there is no option,
warrant, call, right (including any preemptive right), commitment or any other
agreement of any character that the Company or any Subsidiary is a party to, or
may be bound by, requiring it to issue, transfer, sell, purchase or redeem any
shares of capital stock, any Voting Debt, or any securities or rights
convertible into, exchangeable for, or evidencing the right to subscribe for any
shares of capital stock of the Company or any Subsidiary, or to provide funds
to, or make an investment (in the form of a loan, capital contribution or
otherwise) in, any of the Company's Subsidiaries or (excepting loans made in the
ordinary course of a commercial banking business) any other corporation,
partnership, association, firm, individual, trust or other legal entity (each,
and any group of any two or more of the foregoing, a "Person").
(iv) Except as set forth in the Company Letter or the Company SEC
Documents filed prior to the date of this Agreement, there is no voting trust or
other agreement or understanding to which the Company or any Subsidiary is a
party, or may be bound by, with respect to the voting of the capital stock of
the Company or any Subsidiary.
(v) Since December 31, 2001, except as set forth in the Company
Letter or the Company SEC Documents filed prior to the date of this Agreement,
the Company has not (A) issued or permitted to be issued any shares of capital
stock, or securities exercisable for or convertible into shares of capital
stock, of the Company or any Subsidiary; (B) repurchased, redeemed or otherwise
acquired, directly or indirectly through any Subsidiary, any shares of capital
stock of the Company or any Subsidiary (other than the acquisition of trust
account shares); or (C) declared, set aside, made or paid to shareholders of the
Company dividends or other distributions on the outstanding shares of capital
stock of the Company, other than regular quarterly cash dividends at a rate not
in excess of the regular quarterly cash dividend most recently declared by the
Company prior to January 1, 2003.
(c) Authority.
(i) The Company has all requisite corporate power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. This Agreement and the consummation by the Company of the
transactions contemplated hereby have been duly and validly authorized by the
Board of Directors of the Company and no other corporate proceedings on the part
of the Company are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby (other than the approval of this Agreement by
the shareholders of the Company in accordance with the IBCL and the Company's
articles of incorporation). This Agreement has been duly and validly executed
and delivered by the Company and, assuming this Agreement constitutes the valid
and binding agreement of Parent and Merger Sub, constitutes the valid and
binding agreement of the Company, enforceable in accordance with its terms,
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except that the enforcement hereof may be limited by (A) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect,
relating to creditors' rights generally, (B) general principles of equity
(regardless of whether enforceability is considered in a proceeding in equity or
at law) and (C) judicial discretion.
(ii) The execution and delivery of this Agreement does not, and
the consummation of the transactions contemplated hereby (subject to approval by
the shareholders of the Company of this Agreement) will not, conflict with or
result in any violation of, or default (with or without notice or lapse of time,
or both) under, or give rise to a right of termination, amendment, cancellation,
acceleration or payment of any obligation or the loss of a material benefit
under, or the creation of a lien, pledge, security interest, charge or other
encumbrance on assets (any such conflict, violation, default, right of
termination, amendment, cancellation, acceleration or payment, loss or creation,
a "Violation") pursuant to, any provision of the certificate of incorporation or
bylaws of the Company or any Subsidiary or, except as set forth in the Company
Letter, and subject to obtaining or making the consents, approvals, orders,
authorizations, registrations, declarations and filings referred to in
Subsection (iii) below, result in any Violation of any loan or credit agreement,
note, mortgage, indenture, lease, Benefit Plan (as defined in Section 3.1(o)) or
other agreement, obligation, instrument, permit, concession, franchise, license,
judgment, order, decree, statute, law, ordinance, rule or regulation applicable
to the Company or any Subsidiary or their respective properties or assets.
(iii) No consent, approval, order or authorization of, or
registration, declaration or filing with, any federal or state court,
administrative agency or commission or other governmental authority or
instrumentality (a "Governmental Entity") is required by or with respect to the
Company or any Subsidiary in connection with the execution and delivery of this
Agreement, or the consummation by the Company of the transactions contemplated
hereby, the failure to obtain which would have a Material Adverse Effect on the
Company, except for (A) the filing by Parent and Merger Sub of an application
with the Board of Governors of the Federal Reserve System (the "Federal
Reserve") under the Bank Holding Company Act of 1956, as amended ("BHC Act"),
and approval of same (B) the filing of an application by Parent with the Indiana
Department of Financial institutions ("IDFI"), and approval thereof, (C) notices
to or filings with the Small Business Administration ("SBA"), or the Internal
Revenue Service (the "IRS") or the Pension Benefit Guaranty Corporation (the
"PBGC") with respect to any Benefit Plans, (D) the filing by the Company of a
Schedule 14A (the "Proxy Statement") with the Securities and Exchange Commission
("SEC") and (E) the filing by Merger Sub of the Articles of Merger with the
Secretary of State of the State of Indiana, and appropriate documents with the
relevant authorities of other states in which the Company is qualified to do
business.
(d) SEC Documents: Financial Statements. The Company has made
available to Parent each document filed by it with the SEC under the Securities
Act or the Exchange Act since January 1, 1999, including without limitation, (i)
the Company's Annual Report on Form 10-K for the year ended December 31, 2001,
(ii) the Company's Quarterly Report on Form 10-Q for the nine-month period ended
September 30, 2002 and (iii) the Company's definitive proxy statement for its
2002 Annual Meeting of Shareholders held May 29, 2002, each in the form
(including exhibits and any amendments) filed with the SEC (collectively, the
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"Company SEC Documents"). As of their respective dates, each of the Company SEC
Documents did not, and each of the Company SEC Documents filed with the SEC
subsequent to the date hereof will not, contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements made therein, in light of the circumstances in
which they were made, not misleading, provided, that the Company makes no
representation with respect to information supplied by Parent for use in Company
SEC Documents after the date hereof. Each of the consolidated balance sheets
included in or incorporated by reference into the Company SEC Documents
(including their related notes and schedules) fairly presents (or will fairly
present if filed after the date hereof) the consolidated financial condition of
the Company and its consolidated Subsidiaries as of its date and each of the
consolidated statements of income, shareholders' equity and cash flows included
or incorporated by reference into the Company SEC Documents (including any
related notes and schedules) fairly presents (or will fairly present if filed
after the date hereof) the results of operations, shareholders' equity and cash
flows of the Company and its consolidated Subsidiaries for the periods set forth
therein (subject, in the case of unaudited statements to normal year-end
adjustments and any other adjustments described therein that individually or in
the aggregate will not be material in amount or effect), in each case in
accordance with generally accepted accounting principals consistently applied
during the periods involved, except as may be noted therein.
(e) Absence of Certain Changes or Events. Except as set forth in the
Company Letter or Company SEC Documents filed prior to the date of this
Agreement, since December 31, 2001, neither the Company nor any Subsidiary has
(i) incurred any material liability or obligation (indirect, direct or
contingent), except in the ordinary course of its business consistent with past
practices and except for the entering into of this Agreement and the incurring
of professional expenses in connection therewith, (ii) taken any of the
prohibited actions set forth in Section 4.1, or (iii) suffered any change, or
any event involving a prospective change, in its business, financial condition
or results of operations that has had, or is reasonably likely to have, a
Material Adverse Effect on the Company.
(f) Absence of Undisclosed Liabilities. Except as set forth in the
Company Letter or reflected or reserved against in the financial statements for
the year ended December 31, 2001 included in the Company's Annual Report on Form
10-K filed with the SEC, neither the Company nor any Subsidiary has any
obligations or liabilities (contingent or otherwise) that might reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect on
the Company. The Company has set forth in the Company Letter, as of the date
hereof, all interest rate and currency exchange agreements, and all trading
positions regarding any form or type of derivative financial product the value
of which is linked to, or derived from, the value of an underlying asset, rate
or index.
(g) Allowance for Credit Losses. Except as set forth in the Company
Letter or Company SEC Documents filed prior to the date of this Agreement, the
allowance for credit losses (the "Allowance") shown on the consolidated balance
sheets of the Company as of December 31, 2001 included in the financial
statements for the year ended December 31, 2001 included in the Company's Annual
Report on Form 10-K filed with the SEC was, and the Allowance shown in each SEC
Document as of a date subsequent to the execution of this Agreement will be, in
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each case as of the dates thereof, determined in accordance with safe and sound
banking practices and the guidelines and policies of the FDIC, and is (and will
be) adequate, in the reasonable judgment of management, to provide for losses
relating to or inherent in the loan and lease portfolios (including accrued
interest receivables) of the Company and its Subsidiaries and other extensions
of credit (including letters of credit and commitments to make loans or extend
credit) by the Company and its Subsidiaries.
(h) Environmental Matters. Except as set forth in the Company Letter or
Company SEC Documents filed prior to the date of this Agreement, neither the
Company nor any Subsidiary has (i) used, stored, manufactured, or suffered to
exist (collectively, "Utilized") any hazardous or toxic substance, material or
constituent (collectively, a "Hazardous Substance") within the meaning of any
applicable Environmental Law on, in or under any of its property, whether
currently or previously owned or leased by the Company or any Subsidiary, or
(ii) transported or disposed, or caused or permitted any Person to transport or
dispose, of any Hazardous Substance, in each case ((i) and (ii) above), other
than in accordance with all Environmental Laws and other than at the locations
identified on Item 3.1(h) of the Company Letter. Except as set forth in the
Company Letter or Company SEC Documents filed prior to the date of this
Agreement, to the knowledge of the Company no Hazardous Substances have been
Utilized at any time on, in or under any of the Company's or any Subsidiary's
property, whether currently or previously owned or leased by either of them,
including without limitation any other real estate owned (OREO) or leased by
them or, to the knowledge of the Company, held by either as collateral for any
loan, financing or other indebtedness. Except as set forth in the Company Letter
or Company SEC Documents filed prior to the date of this Agreement: neither the
Company nor any Subsidiary is subject to any asserted or, to the knowledge of
the Company, unasserted liabilities, nor are any of the properties of the
Company or any Subsidiary, whether currently or previously owned or leased by
the Company or any Subsidiary, subject to any asserted or, to the knowledge of
the Company, unasserted lien, under any of the Environmental Laws; neither the
Company nor any Subsidiary has ever violated any Environmental Laws in any
material respect, and each of them is presently in compliance in all material
respects with all Environmental Laws (without limiting the generality of the
foregoing, no asbestos, PCBs or other Hazardous Substance or any petroleum
product or constituents thereof is present on, in or under any of the property
of the Company or any Subsidiary, whether currently or previously owned or
leased); to the knowledge of the Company, none of the borrowers of the Company
or any Subsidiary has materially violated any of the Environmental Laws or has
any of its property (whether currently or previously owned or leased) subject to
a lien under any of the Environmental Laws; to the knowledge of the Company,
neither the Company nor any Subsidiary has ever permitted any property currently
or previously owned or leased by any of them to be used as a landfill or dump
site; and to the knowledge of the Company, there are no underground storage
tanks or underground pipelines located on any property owned or leased by the
Company or any Subsidiary, and no underground storage tanks have ever been
located on any property currently or previously owned or leased by any of them.
Except as set forth in the Company Letter or Company SEC Documents filed prior
to the date of this Agreement, to the knowledge of the Company, there are no
actions, suits or proceedings, or demands, claims, notices or, to the knowledge
of the Company, investigations (including notices, demand letters or requests
for information from any environmental agency), instituted or pending, or to the
knowledge of the Company, threatened, relating to the liability of any
properties owned or operated by the Company or any of its Subsidiaries under any
Environmental Law.
11
"Environmental Law" means any federal, state or local law, statute, ordinance,
rule, regulation, code, license, permit, authorization, approval, consent,
order, judgment, decree, injunction or agreement between the Company and any
Governmental Entity relating to (i) the protection, preservation or restoration
of the environment (including, without limitation, air, water vapor, surface
water, ground water, drinking water supply, surface soil, subsurface soil, plant
and animal life or any other natural resource), and/or (ii) the use, storage,
recycling, treatment, generation, transportation, processing, handling,
labeling, production, release or disposal of any substance presently listed,
defined, designated or classified as hazardous, toxic, radioactive or dangerous,
or otherwise regulated, whether by type or by quantity, including any material
containing any such substance as a component; and includes, without limitation,
the Resource Conservation and Recovery Act, the Clean Air Act, the Federal Water
Pollution Control Act, the Toxic Substances Control Act and the Comprehensive
Environmental Response, Compensation and Liability Act.
(i) Information Supplied. None of the information supplied or to be
supplied by the Company for inclusion in (i) the Proxy Statement to be filed
with the SEC by the Company in connection with the Merger will, at the time the
Proxy Statement is filed with the SEC and at the time it becomes effective under
the Securities Act, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, and (ii) the Proxy Statement of the Company will, at the date of
mailing to shareholders of the Company and at the time of the meeting of
shareholders of the Company to be held in connection with the Merger, 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, in light of the circumstances under which they were made, not
misleading. The Proxy Statement (except for such portions thereof that relate
only to Parent and Merger Sub) will comply as to form in all material respects
with the provisions of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations thereunder, to the extent
applicable. The information set forth in the Company Letter by the Company for
purposes of this Agreement is true and accurate in all material respects.
(j) No Default. Except as set forth in the Company Letter, no
Violation exists on the part of the Company or any Subsidiary with respect to
any term, condition or provision of (i) its articles of incorporation or bylaws,
(ii) any note, mortgage, indenture, other evidence of indebtedness, guaranty,
license, agreement or other contract, instrument or contractual obligation to
which the Company or any Subsidiary is now a party or by which it or any of its
properties or assets may be bound, or (iii) any order, writ, injunction or
decree applicable to the Company or any Subsidiary, except for possible
Violations that, individually or in the aggregate, do not, and, insofar as
reasonably can be foreseen, in the future will not, have a Material Adverse
Effect on the Company.
12
(k) Compliance with Licenses, Permits and Applicable Laws. The Company
and its Subsidiaries have received such certificates, permits, licenses,
franchises, consents, approvals, orders, authorizations and clearances from
appropriate governmental entities (the "Company Permits") as are necessary to
own or lease and operate its properties and to conduct its business as currently
owned or leased and conducted, and all such Company Permits are valid and in
full force and effect. The Company and its Subsidiaries are in compliance in all
material respects with its obligations under the Company Permits, with only such
exceptions as, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect on the Company, and no event has
occurred that allows, or after notice of lapse of time, or both, would allow,
revocation or termination of any material Company Permit. Except as set forth in
the Company Letter, the businesses of the Company and its Subsidiaries are not
being conducted in violation of any law, ordinance or regulation of any
Governmental Entity, except for possible violations that individually or in the
aggregate do not, and in the future will not, have a Material Adverse Effect on
the Company. Except for routine examinations by Governmental Entities charged
with the supervision or regulation of savings associations or savings banks or
savings association or thrift holding companies, or the insurance of their
deposits ("Bank Regulators"), as of the date of this Agreement, to the knowledge
of the Company, no investigation by any Governmental Entity with respect to the
Company or any Subsidiary is pending or threatened.
(l) Actions and Proceedings. Except as set forth in the Company
Letter, there are no outstanding orders, judgments, injunctions, awards or
decrees of any Governmental Entity against or affecting the Company or any
Subsidiary, any of its or their current or to its knowledge former directors,
employees, consultants, agents or shareholders, as such, any of its or their
properties, assets or business or any Company Benefit Plan (as defined in
Section 3.1(o)). Except as set forth in the Company Letter, there are no
actions, suits or claims or legal, administrative or arbitration proceedings or,
to the knowledge of the Company, investigations pending or threatened, against
or affecting the Company or any Subsidiary, any of its or their current or
former directors, officers, employees, consultants, agents or shareholders, as
such, any of its or their properties, assets or business, or any Company Benefit
Plan that if brought (if not now pending) would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect on the Company.
There are no actions, suits or claims or legal, administrative or arbitration
proceedings or, to the knowledge of the Company, investigations or labor
disputes pending or threatened, against or affecting the Company or any
Subsidiary, any of its or their current or former directors, officers,
employees, consultants, agents or shareholders, as such, any of its or their
properties, assets or business or any Company Benefit Plan relating to the
transactions contemplated by this Agreement.
(m) Taxes. The Company and each of its Subsidiaries have filed all tax
returns required to be filed by any of them and have paid (or the Company has
paid on their behalf), or have set up an adequate liability for the payment of,
all Taxes required to be paid as shown on such returns, and the most recent
Company Financial Statements reflect an adequate liability for all Taxes payable
by the Company and its Subsidiaries accrued through the date of such financial
statements. No material deficiencies for any Taxes have been proposed, asserted
or assessed against the Company or any of its Subsidiaries that are not
adequately accrued. Except with respect to claims for refund, the federal income
tax returns of the Company and each of its Subsidiaries have been examined by
13
and settled with the IRS, or the statute of limitations with respect to such
years has expired (and no waiver extending the statute of limitations has been
requested or granted), for all years through 1998. For the purpose of this
Agreement, the term "Taxes" (including, with correlative meaning, the term
"tax") shall include, except where the context otherwise requires, all federal,
state, local and foreign income, profits, franchise, gross receipts, payroll,
sales, employment, unemployment (including unemployment insurance premiums or
contributions), use, property, withholding, excise, occupancy, and other taxes,
duties or assessments of any nature whatsoever, together with all interest,
penalties and additions imposed with respect to such amounts.
(n) Certain Agreements. Except as set forth in the Company Letter or
Company SEC Documents filed prior to the date of this Agreement, and except for
this Agreement, as of the date of this Agreement, neither the Company nor any of
its Subsidiaries is a party to any oral or written (i) employment or other
agreement, contract, commitment, program, policy or arrangement requiring the
Company or any Subsidiary to pay compensation (including any salary, bonus,
deferred compensation, incentive compensation, severance, vacation or sick pay,
or any other fringe benefit payment) or any other type of remuneration to any
Person, (ii) agreement or plan, including any stock option plan, any of the
benefits of which will be increased, or the vesting of the benefits of which
will be accelerated, by the occurrence of any of the transactions contemplated
by this Agreement, or the value of any of the benefits of which will be
calculated on the basis of any of the transactions contemplated by this
Agreement, (iii) contract or agreement not terminable without penalty on 30
days' or less notice or involving the payment of more than $10,000 in any 12
month period; (iv) contract or agreement that materially limits the ability of
the Company or any of its Subsidiaries to compete in any line of business or
with any Person or in any geographic area or during any period of time, or (v)
contract or agreement with any legal, accounting, investment banking, business
or other advisor or consultant obligating the Company and/or any Subsidiary to
pay, individually or in the aggregate, more than $ 50,000.
(o) Benefit Plans.
(i) The Company has disclosed in the Company Letter each employee
benefit plan (including, without limitation, any "employee benefit plan," as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended, ("ERISA")) (all the foregoing being herein called "Benefit Plans"),
maintained or contributed to by the Company or any Subsidiary (the "Company
Benefit Plans"). The Company will make available to Parent a true and correct
copy of (a) the most recent annual report (Form 5500) filed with the IRS, (B)
each such Company Benefit Plan, (C) each trust agreement relating to such
Company Benefit Plan, (D) the most recent summary plan description for each
Company Benefit Plan for which a summary plan description is required, (E) the
most recent actuarial report or valuation relating to a Company Benefit Plan
subject to Title IV of ERISA and (F) the most recent determination letter issued
by the IRS with respect to any Company Benefit Plan qualified under Section
401(a) of the Code.
14
(ii) With respect to the Company Benefit Plans, individually and
in the aggregate, except as set forth in the Company Letter, no event has
occurred and, to the knowledge of the Company, there exists no condition or set
of circumstances, in connection with which the Company or any of its
Subsidiaries could be subject to any liability (except liability for benefits,
claims and funding obligations payable in the ordinary course) under ERISA, the
Code or any other applicable law.
(p) Subsidiaries. First Community Bank & Trust is the sole banking
Subsidiary of the Company ("First Community Bank"). First Community Bank is a
commercial bank and trust company duly organized, validly existing and in good
standing under the laws of the State of Indiana. The deposits of First Community
Bank are insured to the maximum extent permitted by law under the Bank Insurance
Fund of the FDIC. First Community Real Estate Management, Inc. is the only other
Subsidiary of the Company.
(q) Agreements With Bank Regulators. Except as set forth in the
Company Letter, neither the Company nor any Subsidiary is a party to any written
agreement or memorandum of understanding with, or a party to any commitment
letter or similar undertaking to, or subject to any order or directive by, nor
is it a recipient of any extraordinary supervisory letter from, any Bank
Regulator which restricts materially the conduct of its business, or in any
manner relates to its capital adequacy, its credit policies or its management,
nor has the Company been advised by any Bank Regulator that it is contemplating
issuing or requesting (or is considering the appropriateness of issuing or
requesting) any such order, directive, agreement, memorandum of understanding,
extraordinary supervisory letter, commitment letter or similar submission.
(r) Business Combination Provisions of the IBCL Not Applicable. The
provisions of Sections 23-1-43-18 and 23-1-43-19 of the IBCL will not, prior to
the termination of this Agreement, assuming the accuracy of the representations
contained in Section 3.2(i) (without giving effect to the knowledge
qualification thereof), apply to this Agreement, the Merger or the transactions
contemplated hereby and thereby.
(s) Vote Required. The affirmative vote of the holders of a majority of
the outstanding shares of Company Common Stock entitled to vote thereon is the
only vote of the holders of any class or series of Company capital stock
necessary to approve this Agreement and the transactions contemplated hereby.
(t) Properties.
(i) Except as set forth in the Company Letter or Company SEC
Documents filed prior to the date of this Agreement, the Company or one of its
Subsidiaries (A) has good, valid and marketable title to all the properties and
assets reflected in the latest audited financial statements included in the
Company Financial Statements as being owned by the Company or one of its
Subsidiaries, or acquired after the date thereof (except properties sold or
otherwise disposed of since the date thereof in the ordinary course of
business), free and clear of all mortgages, pledges, security interests, claims,
liens, charges, options or other encumbrances of any nature whatsoever
(including, without limitation, in the case of real property, easements and
15
rights-of-way) (collectively, "Liens"), except (x) statutory Liens securing
payments not yet due, (y) Liens on assets of any Subsidiary incurred in the
ordinary course of a banking business and (z) such Liens and imperfections or
irregularities of title that do not materially affect the present use of the
properties or assets subject thereto or affected thereby or otherwise materially
impair business operations at such properties, and (B) is the lessee of all
leasehold estates reflected in the latest audited financial statements included
in the Company SEC Documents or acquired after the date thereof (except for
leases that have expired by their terms since the date thereof) and is in
possession of the properties purported to be leased thereunder, and each such
lease is valid without default thereunder by the lessee or, to the Company's
knowledge, the lessor.
(ii) The Company has set forth in the Company Letter or the
Company SEC Documents the street address of all real property currently owned by
the Company or any Subsidiary, including properties held by the Company or any
Subsidiary as a result of foreclosure or repossession or carried on the
Company's or any Subsidiary's books as "other real estate owned" or similar type
classification ("OREO") ( collectively, the "Current Real Properties"). Except
as set forth in the Company Letter, the Current Real Properties except OREO
properties are, and the OREO properties to the knowledge of the Company are,
generally in good condition and have been well maintained in accordance with
reasonable and prudent business practices applicable to like facilities. Except
as set forth in the Company Letter, there are no proceedings, claims, disputes
or conditions affecting any of the Current Real Properties or leasehold
interests of the Company or any Subsidiary that, insofar as reasonably can be
foreseen, may curtail or interfere with the current use of such property (or, in
the case of OREO property, the use of such property at the time of making the
loan secured by such property).
(u) Corporate Documents, Books and Records. The Company has made
available to Parent true and complete copies of the articles of incorporation
and bylaws of the Company and its Subsidiaries. The minute books of the Company
and each of its Subsidiaries contain complete and accurate records in all
material respects of all meetings and other corporate actions of their
respective shareholders and Board of Directors (including committees of the
Board of Directors). The stock transfer records of the Company and each of its
Subsidiaries are, to the knowledge of the Company, complete and accurate in all
material respects.
(v) Insurance. The Company and its Subsidiaries maintain (or the
Company maintains on their behalf) with financially sound and reputable
insurance companies insurance policies and bonds in force in such amounts and
against such liabilities and risks as companies engaged in a similar business,
in accordance with good business practice, customarily would be insured. Except
as set forth in the Company Letter, to the Company's knowledge, neither the
Company nor any Subsidiary is liable for any material, retroactive premium
adjustments. All such insurance policies and bonds are valid, enforceable and in
full force and effect and, except as set forth in the Company Letter, neither
the Company nor any Subsidiary has received any notice of premium increases or
cancellation and, to the Company's knowledge, no grounds for any cancellation
notice exists. Except as set forth in the Company Letter, since December 31,
2000, neither the Company nor any Subsidiary has failed to make a timely claim
with respect to any matter giving rise to a claim or potential claim under any
16
such insurance policies and bonds where such failure to make a timely claim
would have a Material Adverse Effect on the Company.
(w) Potential Competing Interests. Except as set forth in the Company
Letter, (i) no director, officer or key employee of the Company or any
Subsidiary or, to the Company's knowledge, any beneficial owner of 5% or more of
any class of capital stock of the Company (a "Five Percent Owner"), or any
"affiliate" or "associate" (as each such term is defined in Rule 12b-2 under the
Exchange Act ) of any of the foregoing directly or indirectly beneficially owns
a 5% or more interest in any institution (other than the Company and its
Subsidiaries) that is engaged in the business of making loans and/or taking
deposits, (ii) no director, officer or key employee of the Company or any
Subsidiary or, to the Company's knowledge, any Five Percent Owner, or any
affiliate or associate of any of the foregoing, has any interest, direct or
indirect, in any contract or agreement with, commitment or obligation of or to,
or claim against, the Company or any Subsidiary (excluding contracts, agreements
or obligations with respect to monies borrowed from, or claims to deposits
maintained with, First Community Bank in the ordinary course of a banking
business consistent with safe and sound banking practices), and (iii) neither
the Company nor any Subsidiary uses any real or personal property in which any
director, officer or key employee of the Company or any Subsidiary or, to the
Company's knowledge, Five Percent Owner, or any affiliate or associate of any of
the foregoing directly or indirectly beneficially owns a 5% or more interest in
any such real or personal property.
(x) Software. The consummation of the transactions contemplated by this
Agreement will not result in the loss by the Company or any Subsidiary of any
rights to use computer or telecommunication software, including source and
object code and documentation and any other media (including manuals, journals
and reference books), necessary to carry on its business substantially as
currently conducted and the loss of which would have a Material Adverse Effect
on the Company.
(y) Brokers. Except as set forth in the Company Letter, no broker,
investment banker, financial advisor or other Person is entitled to any
broker's, finder's, financial advisor's or other similar fee or commission in
connection with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of the Company or any Subsidiary.
(z) Interest Rate Risk Management Instruments. Neither the Company nor
any Subsidiary is a party or counterparty to any interest rate swaps, caps,
floors or option agreements or other interest rate risk management arrangements,
whether entered into for its account or for the account of a customer.
(aa) Modification Agreements. With respect to (i) the Waiver and
Termination Agreements between First Community Bank , on the one hand, and
respectively Messrs. Albert R. Jackson, III, Keith Lindauer and William Dean
Jackson on the other hand, (ii) the Acknowledgement of Amendment instruments
executed by First Community Bank, on the one hand, and respectively by each of
the Affiliated Shareholders and Messrs. Keith Lindauer, Donald Goeb and William
Dean Jackson, on the other hand, and (iii) the Resignation and Election of Early
Retirement instruments respectively executed by Messrs. Albert R. Jackson, Jr.,
17
Frank D. Neese and Merrill M. Wesemann (collectively, the " Modification
Agreements"): each of the parties respectively executing and delivering the
Modification Agreements has all requisite personal capacity (or in the case of
First Community Bank, corporate power and authority) to execute and deliver the
Modification Agreements to which he or it is a party and to effect the waivers,
acknowledgments and other actions respectively contemplated thereby. The Company
has delivered true and complete copies of such signed Modification Agreements to
Parent prior to the execution of this Agreement by Parent.
3.2 Representations and Warranties of Parent and Merger Sub . Each of
Parent and Merger Sub jointly and severally represent and warrant to the Company
as follows:
(a) Organization, Standing and Power. Parent is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Indiana. Each of Parent's Subsidiaries is a corporation duly organized, validly
existing and in good standing under the laws of its state of incorporation or
organization. Each of Parent and its Subsidiaries has all requisite power and
authority to own, lease and operate its properties and to carry on its business
as now being conducted, and is duly qualified and in good standing to do
business in each jurisdiction in which the nature of its business or the
ownership or leasing of its properties makes such qualification necessary,
except where the failure to be so qualified would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect on Parent.
(b) Capital Structure.
(i) The authorized capital stock of Parent consists of 10,000,000
Common Shares, without par value ("Parent Common Stock"), and 400,000 Preferred
Shares, without par value ("Parent Preferred Stock"), of which on the date
hereof 6,717,715 shares of Parent Common Stock are outstanding , 350,000 shares
of Parent Common Stock are reserved for issuance under Parent's 2003 Stock
Option Plan and 56,910 shares of Parent Common Stock are held by Parent in its
treasury. There are on the date hereof no shares of Parent Preferred Stock
outstanding, reserved for issuance or held by Parent in its treasury.
(ii) No Voting Debt of Parent is issued or outstanding. All
outstanding shares of Parent Common Stock are duly authorized, validly issued,
fully paid and nonassessable and not subject to preemptive rights.
(iii) Except as set forth in the Parent SEC Documents (as defined
in Section 3.2(d)) or a letter, if any, dated the date hereof and delivered to
the Company concurrent with the execution of this Agreement (the "Parent
Letter"), which relates to this Agreement and is designated therein as the
Parent Letter, there is no option, warrant, call, right (including any
preemptive right), commitment or any other agreement of any character that
Parent or any Subsidiary is a party to, or may be bound by, requiring it to
issue, transfer, sell, purchase or redeem any shares of capital stock, any
Voting Debt, or any securities or rights convertible into, exchangeable for, or
evidencing the right to subscribe for any shares of capital stock of Parent or
any Subsidiary, or to provide funds to, or make an investment (in the form of a
18
loan, capital contribution or otherwise) in, any of Parent's Subsidiaries or
(excepting loans made in the ordinary course of a commercial banking business)
any other Person.
(iv) Except as set forth in the Parent SEC Documents or the
Parent Letter, and except for this Agreement, there is no voting trust or other
agreement or understanding to which Parent or any Subsidiary is a party, or may
be bound by, with respect to the voting of the capital stock of Parent or any
Subsidiary.
(v) Since December 31, 2002, except as set forth in the Parent
SEC Documents or the Parent Letter, Parent has not (A) issued or permitted to be
issued any shares of capital stock, or securities exercisable for or convertible
into shares of capital stock, of Parent or any Subsidiary; (B) repurchased,
redeemed or otherwise acquired, directly or indirectly through any Subsidiary,
any shares of capital stock of Parent or any Subsidiary (other than the
acquisition of trust account shares); or (C) declared, set aside, made or paid
to shareholders of Parent dividends or other distributions on the outstanding
shares of capital stock of Parent, other than regular quarterly cash dividends.
(c) Authority.
(i) Each of Parent and Merger Sub has all requisite corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. This Agreement and the consummation by Parent
and Merger Sub of the transactions contemplated hereby have been duly and
validly authorized by the Board of Directors of Parent and Merger Sub, and by
Parent as the shareholder of Merger Sub, and no other corporate proceedings on
the part of Parent or Merger Sub are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by Parent and Merger Sub, and assuming this
Agreement constitutes the valid and binding agreement of the Company,
constitutes the valid and binding agreement of Parent and Merger Sub,
enforceable in accordance with its terms, except that the enforcement hereof may
be limited by (A) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect, relating to creditors' rights
generally, (B) general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law) and (C)
judicial discretion.
(ii) The execution and delivery of this Agreement does not, and
the consummation of the transactions contemplated hereby will not, create any
Violation under any provisions of the articles of incorporation or bylaws of
Parent or any Subsidiary or, except as set forth in the Parent Letter and
subject to obtaining or making the consents, approvals, orders, authorizations,
registrations, declarations and filings referred to in Subsection (iii) below,
result in any Violation of any loan or credit agreement, note, mortgage,
indenture, lease, Benefit Plan (as defined in Section 3.1(o)) or other
agreement, obligation, instrument, permit, concession, franchise, license,
judgment, order, decree, statute, law, ordinance, rule or regulation applicable
to Parent or any Subsidiary or their respective properties or assets.
19
(iii) No consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Entity is required by
or with respect to Parent or any Subsidiary in connection with the execution and
delivery of this Agreement, or the consummation by Parent and Merger Sub of the
transactions contemplated hereby, the failure to obtain which would have a
Material Adverse Effect on Parent, except for (A) the filing by Parent and
Merger Sub of an application with the Federal Reserve under the BHC Act, and
approval of same, (B) the filing of an application by Parent with the IDFI, and
approval thereof, (C) notices to or filings with the SBA, or the IRS or the PBGC
with respect to any Benefit Plans, (D) the filing by the Company of a Proxy
Statement with the SEC, and (G) the filing by Merger Sub of the Articles of
Merger with the Secretary of State of the State of Indiana, and appropriate
documents with the relevant authorities of other states in which the Company is
qualified to do business.
(d) SEC Documents: Financial Statements. Parent has made available to
the Company each document filed by it since December 31, 1999 with the SEC under
the Securities Act or the Exchange Act, including (i) Parent's Annual Report on
Form 10-K for the year ended December 31, 2001, (ii) Parent's Quarterly Report
on Form 10-Q for the period ended September 30, 2002, and (iii) Parent's
definitive proxy statement for its 2003 Annual Meeting of Shareholders to be
held April 23, 2003, each in the form (including exhibits and any amendments)
filed with the SEC (collectively, the "Parent SEC Documents"). As of their
respective dates, each of the Parent SEC Documents did not, and each of the
Parent SEC Documents filed with the SEC subsequent to the date hereof will not,
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements made therein,
in light of the circumstances in which they were made, not misleading, provided,
that Parent makes no representation with respect to information supplied by the
Company for use in Parent SEC Documents after the date hereof. Each of the
consolidated balance sheets included in or incorporated by reference into the
Parent SEC Documents (including their related notes and schedules) fairly
presents (or will fairly present if filed after the date hereof) the
consolidated financial condition of Parent and its consolidated Subsidiaries as
of its date and each of the consolidated statements of income, shareholders'
equity and cash flows included or incorporated by reference into the Parent SEC
Documents (including any related notes and schedules) fairly presents (or will
fairly present if filed after the date hereof) the results of operations,
shareholders' equity and cash flows of Parent and its consolidated Subsidiaries
for the periods set forth therein (subject, in the case of unaudited statements
to normal year-end adjustments and any other adjustments described therein which
individually or in the aggregate will not be material in amount or effect), in
each case in accordance with generally accepted accounting principals
consistently applied during the periods involved, except as may be noted
therein.
(e) Absence of Certain Changes or Events. Except as set forth in the
Parent Letter or Parent SEC Documents filed prior to the date of this Agreement,
since December 31, 2002, neither Parent nor any Subsidiary has incurred any
material liability or obligation (indirect, direct or contingent), except in the
ordinary course of its business consistent with past practices, or suffered any
change, or any event involving a prospective change, in its business, financial
condition or results of operations that has had, or is reasonably likely to
have, a Material Adverse Effect on Parent.
20
(f) Absence of Undisclosed Liabilities. Except as set forth in the
Parent Letter or Parent SEC Documents filed prior to the date of this Agreement,
neither Parent nor any Subsidiary has any obligations or liabilities (contingent
or otherwise) that might reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect on Parent. Parent has set forth in the
Parent Letter, as of the date hereof, all interest rate and currency exchange
agreements, and all trading positions regarding any form or type of derivative
financial product the value of which is linked to, or derived from, the value of
an underlying asset, rate or index.
(g) Information Supplied. None of the information supplied or to be
supplied by Parent for inclusion in the Proxy Statement to be filed with the SEC
by the Company and mailed to shareholders of the Company in connection with the
Merger will contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The information set forth in the Parent Letter by Parent for
purposes of this Agreement is true and accurate in all material respects.
(h) Brokers. No broker, investment banker, financial advisor or other
Person is entitled to any broker's, finder's, financial advisor's or other
similar fee or commission in connection with the transactions contemplated by
this Agreement based upon arrangements made by or on behalf of Parent or any
Subsidiary.
(i) Ownership of Company Stock. As of the date hereof, neither Parent
nor, to its knowledge, any of its affiliates or associates (as such terms are
defined under the Exchange Act), (i) beneficially owns, directly or indirectly,
or (ii) are parties to any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of, in each case, shares of
capital stock of the Company that, in the aggregate, represent 10% or more of
the outstanding shares of capital stock of the Company entitled to vote
generally in the election of directors (other than trust account shares).
(j) Resources. Subject to the Requisite Regulatory Approvals
contemplated in Section 6.01(b) , Parent has on hand or has timely access to
capital funds sufficient to enable Parent to (i) satisfy the capital adequacy
guidelines and requirements of the Federal Reserve and any other applicable
federal or state regulator or agency as those guidelines are applied to Parent
and the Merger, and (ii) pay the consideration for the Company Common Stock and
the Company Options provided for in Section 2.1.
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ARTICLE IV
CONDUCT OF THE COMPANY PRIOR TO CLOSING
4.1 Conduct of Business.
(a) Except as set forth in the Company Letter, the Company agrees that
during the period from the date of this Agreement to the Effective Time (unless
Parent shall otherwise agree in writing and except as otherwise contemplated by
this Agreement), the Company will, and will cause each of its Subsidiaries to,
conduct their respective business operations in the ordinary and usual course of
business consistent with past practice and, to the extent consistent therewith,
with no less diligence and effort than would be applied in the absence of this
Agreement, seek to preserve intact its respective current business organization,
keep available the service of its respective current directors, officers and
employees and preserve its respective relationships with customers, suppliers
and others having business dealings with it to the end that goodwill and ongoing
business shall not be impaired in any material aspect at the Effective Time.
Without limiting the generality of the foregoing, and except as otherwise
permitted in this Agreement prior to the Effective Time or except as set forth
in the Company Letter, the Company will not, and it will cause each Subsidiary
not to, without the prior written consent of Parent:
(i) issue, sell, grant, dispose of, pledge or otherwise encumber,
or authorize or propose the issuance, sale, disposition or pledge or other
encumbrance of (A) any additional shares of capital stock of any class
(including shares of Company Common Stock), or any securities or rights
convertible into, exchangeable for, or evidencing the right to subscribe for any
shares of capital stock, or any rights, warrants, options, calls, commitments or
any other agreements of any character to purchase or acquire any shares of
capital stock or any securities or rights convertible into, exchangeable for, or
evidencing the right to subscribe for, any shares of capital stock, or any other
ownership interest (including, without limitation, any phantom interest), other
than the issuance of Company Common Stock upon the exercise of Company Options
or the conversion of convertible debt securities identified in Section
3.1(b)(i), or (B) any other securities in respect of, in lieu of, or in
substitution for, shares of Company Common Stock or Company Options outstanding
on the date hereof;
(ii) redeem, purchase or otherwise acquire, or propose to redeem,
purchase or otherwise acquire, any of its outstanding shares of Company Common
Stock (except for the acquisition of trust account shares);
(iii) split, combine, subdivide or reclassify any shares of
Company Common Stock or declare, set aside for payment or pay any dividend, or
make any other actual, constructive or deemed distribution, whether in cash,
stock, property or otherwise, in respect of any shares of Company Common Stock
or otherwise make any payments to shareholders in their capacity as such, except
(A) the Company may continue the declaration and payment of the regular
quarterly cash dividend for the first fiscal quarter of 2003 not in excess of
$0.05 per share of Company Common Stock, with the usual record and payment date
for such dividend in accordance with past dividend practice, and (B) for
dividends by a wholly owned Subsidiary;
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(iv) adopt a plan of complete or partial liquidation,
dissolution, merger, consolidation, restructuring, recapitalization or other
reorganization of the Company (other than the Merger);
(v) adopt any amendments to its articles of incorporation or
bylaws;
(vi) make any acquisition or disposition of assets or securities,
except in the ordinary course of business consistent with past practices and
except for the acquisition and prepayment of its outstanding convertible debt
securities as contemplated by Section 5.12;
(vii) incur any indebtedness for borrowed money or guarantee any
such indebtedness or make any loans, advances or capital contributions to, or
investments in, any other Person, other than in the ordinary course of a banking
business consistent with past practices, it being understood and agreed that the
incurrence of indebtedness in the ordinary course of a banking business shall
include the creation of deposit liabilities, purchases of federal funds, sales
of certificates of deposit and entering into repurchase agreements;
(viii) offer any new deposit, loan or investment product or
service or change its lending, investment, liability management, loan loss
provision, loan loss charge-off or other material banking policies;
(ix) grant any increases in the compensation of any of its
directors, officers or employees, except as may be required by any contract or
agreement disclosed in the Company Letter pursuant to Section 3.1(n) or in the
ordinary course of business and in accordance with past practice, or as may be
approved on a case by case basis by Parent;
(x) pay or agree to pay any pension, retirement allowance,
severance or other employee benefit not required or contemplated by any of the
existing Company Benefit Plans or any agreements or arrangements as in effect on
the date hereof to any such director, officer or employee, whether past or
present;
(xi) enter into any new or amend any existing employment or
severance or termination agreement with any director, officer or employee;
(xii) except in the ordinary course of business consistent with
past practice or as may be required to comply with applicable law, become
obligated under any new Benefit Plan or amend any Company Benefit Plan in
existence on the date hereof if such amendment would have the effect of
materially enhancing any benefits thereunder;
(xiii) make any capital expenditures or commitments for any
capital expenditures, other than capital expenditures or commitments for any
capital expenditures set forth in the Company Letter;
(xiv) make any material changes in its customary methods of
marketing;
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(xv) take, or agree to commit to take, any action that would make
any representation or warranty of the Company contained herein inaccurate in any
material respect at, or as of any time prior to, the Effective Time; or
(xvi) change its method of accounting in effect at December 31,
2001, except as required by changes in generally accepted accounting principles
as concurred in by each party's independent auditors, or change its fiscal year;
(xvii) take any action that would, or reasonably might be
expected to, adversely affect the ability of Parent to obtain any of the
Requisite Regulatory Approvals (as defined in Section 6.1(b)) without imposition
of a condition or restriction of the type referred to in Section 6.1(e);
(xviii) authorize, recommend, propose or announce an intention to
do any of the foregoing, or enter into any contract, agreement, commitment or
arrangement to do any of the foregoing.
4.2 Acquisition Proposals .
(a) The Company shall not, and the Company shall direct and cause its
officers, directors, employees, agents and representatives (including without
limitation any attorney, accountant, investment banker or other advisor retained
by it) not to, initiate, solicit or encourage, directly or indirectly, any
inquiries or the making or implementation of any proposal or offer (including,
without limitation, any proposal or offer to its shareholders) with respect to a
merger, acquisition, consolidation or similar transaction involving, or any
purchase of all or any significant portion of the assets or any equity
securities of, the Company (any such proposal or offer being hereinafter
referred to as an "Acquisition Proposal") or engage in any negotiations or
discussions with, or furnish any information or data to, any third party
relating to an Acquisition Proposal. The Company and its officers, directors,
employees, agents and representatives shall immediately cease any existing
discussions or negotiations with any parties conducted heretofore with respect
to any Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Section
4.2, the Company and the Board of Directors of the Company (A) may furnish
information to, and participate in discussions or negotiations with any third
party that after the date hereof submits an unsolicited bona fide written
Acquisition Proposal to the Company if the Company's Board of Directors
determines in good faith, based upon the written advice of outside legal
counsel, that the failure to furnish such information or participate in such
discussions or negotiations may reasonably constitute a breach of the Board's
fiduciary duties under applicable law, and (B) shall be permitted to (y) take
and disclose to the Company's shareholders a position with respect to the Merger
or an Acquisition Proposal, or amend or withdraw such position, or (z) make
disclosure to the Company's shareholders, in each case either with respect to or
as a result of an Acquisition Proposal, if the Company's Board of Directors
determines in good faith, based upon the written advice of outside legal
counsel, that the failure to take such action may reasonably constitute a breach
of the Board's fiduciary duties under applicable law; provided, that the Company
shall not enter into any acquisition agreement with respect to any Acquisition
24
Proposal except concurrently with the termination of this Agreement in
accordance with the provisions of Section 7.1(d) and shall not enter into any
other agreements with respect to an Acquisition Proposal except concurrently
with such termination unless, and only to the extent that, such other agreements
would facilitate the process of providing information to, or conducting
discussions or negotiations with, the parties submitting such an Acquisition
Proposal, such as confidentiality and standstill agreements.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 Access to Information . Upon reasonable notice, the Company shall
(and the Company shall cause its Subsidiaries to) afford to the officers,
directors, employees, accountants, counsel and other authorized representatives
of Parent ("Representatives") reasonable access, during normal business hours
throughout the period prior to the Effective Time, to its books and records,
properties, officers, directors, employees, counsel, accountants and other
representatives, and, during such period, shall (and shall cause its
Subsidiaries to) make available to such Representatives of Parent (i) a copy of
each report, schedule, registration statement and other document filed or
received by it during such period pursuant to the requirements of federal
securities laws or federal or state banking laws (other than reports or
documents that such party is not permitted to disclose under applicable law) and
(ii) all other information concerning its business, properties and personnel and
all financial operating and other data as may reasonably be requested. Parent
will hold (and cause its Representatives to hold) any such information that is
non-public in confidence and, without limitation on its obligations under the
preceding clause, Parent will hold (and cause its Representatives to hold) any
such information in confidence until such time that such information is or
becomes generally available to the public other than as a result of a disclosure
by Parent or any of its Representatives; provided, however, that this sentence
shall not prohibit disclosure of such information to the extent required or
reasonably contemplated by any subpoena, civil investigative demand or other
similar process, following 48-hours' prior notice to the Company of such
intended disclosure if reasonably possible under the circumstances. No
investigation by either Parent or Merger Sub shall affect the representations
and warranties of the Company , except to the extent such representations and
warranties are by their terms qualified by information set forth in the Company
Letter.
5.2 Shareholder Meeting . The Company shall duly call, give notice of,
convene and hold a meeting of its shareholders to be held for the purpose of
voting upon the approval and adoption of this Agreement and the transactions
contemplated hereby (the "Shareholders' Meeting"). Unless the Company has
determined to recommend an Acquisition Proposal in accordance with Section
4.2(b), the Company will, through its Board of Directors, recommend to its
shareholders approval and adoption of this Agreement and the transactions
contemplated hereby, except where such recommendation would violate the IBCL.
The Company shall cooperate with Parent with respect to the timing of the
Shareholders' meeting and shall use its best efforts to hold such meeting as
soon as reasonably practicable after the expiration of 45 days from the date on
which the Proxy Statement has been filed with and cleared by the SEC.
25
5.3 Reasonable Efforts . Each of the Company and Parent shall, and the
Company and Parent shall cause its Subsidiaries to, use all reasonable efforts
to take, or cause to be taken, all actions necessary, proper or advisable to
comply promptly with all legal requirements that may be imposed on such party or
its Subsidiaries with respect to the Merger and to consummate and make effective
the transactions contemplated by this Agreement, subject to the appropriate vote
of shareholders of the Company described in Section 3.1(s), including using all
reasonable efforts (i) to obtain (and to cooperate with the other party to
obtain) any necessary or appropriate consent, authorization, order or approval
of, or any exemption by, any Governmental Entity and/or any other public or
private third party in connection with the Merger and the transactions
contemplated by this Agreement, (ii) to effect all necessary registrations,
filings and submissions and (iii) to lift any injunction or other legal bar to
the Merger (and, in such case, to proceed with the Merger as expeditiously as
possible), subject, however, to the requisite vote of the shareholders of the
Company.
5.4 Post-September 30, 2002 Company Financial Statements . The Company
shall make available to Parent true and complete copies of the following:
(a) Unaudited Financial Statements. Any monthly and quarterly
unaudited consolidated balance sheet and the related consolidated statements of
income, shareholders' equity and cash flows of the Company for any monthly or
quarterly period ended subsequent to September 30, 2002 and prior to the
Effective Time; and
(b) Audited Financial Statements. Any audited consolidated balance
sheet and the related consolidated statements of income, shareholders' equity
and cash flows of the Company for any year ended after September 30, 2002 and
prior to the Effective Time.
5.5 Expenses . Whether or not the Merger is consummated, all costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expense, except as
expressly provided herein and except that expenses incurred in connection with
printing and mailing the Proxy Statement shall be shared equally by Parent and
the Company.
5.6 Additional Agreements. In case at any time after the Effective Time
any further action is necessary or desirable to carry out the purposes of this
Agreement or to vest the Surviving Corporation with full title to all
properties, assets, rights, approvals, immunities and franchises of either of
the Company or Merger Sub, the proper officers and directors of the Company and
Merger Sub shall take all such necessary action.
5.7 Indemnification.
(a) Indemnification. Subject to the last sentence of this Section
5.7(a), for a period of three years after the Effective Time, Parent shall
indemnify, defend and hold harmless each person who is now or who becomes prior
to the Effective Time, an officer or director of the Company or any Subsidiary
(each, an "Indemnified Party" and, collectively, the "Indemnified Parties")
against (i) all losses, claims, damages, costs, expenses, liabilities or
26
judgments or amounts that are paid in settlement with the approval of Parent
(which approval shall not be unreasonably withheld) of or in connection with any
claim, action, suit, proceeding or investigation based in whole or in part on or
arising in whole or in part out of the fact that such person is or was a
director, officer or employee of the Company or any Subsidiary, whether
pertaining to any matter existing or occurring at or prior to the Effective Time
and whether asserted or claimed prior to, or at or after, the Effective Time
("Indemnified Liabilities") and (ii) all Indemnified Liabilities based in whole
or in part on, or arising in whole or in part out of, or pertaining to this
Agreement or the transactions contemplated hereby, in each case to the full
extent the Company of any Subsidiary would have been permitted under Indiana law
and its articles of incorporation and bylaws to indemnify such person (and
Parent shall pay expenses in advance of the final disposition of any such action
or proceeding to each Indemnified Party to the full extent permitted by law if
the determination that indemnification is not precluded contemplated by Section
23-1-37-10(a)(3) of the IBCL is made and the undertaking required by the IBCL is
provided. Without limiting the foregoing, in the event any such claim, action,
suit, proceeding or investigation is brought against Indemnified Parties
(whether arising before or after the Effective Time), (i) any counsel retained
by the Indemnified Parties for any period after the Effective Time shall be
reasonably satisfactory to Parent; (ii) after the Effective Time, Parent shall
pay all reasonable fees and expenses of such counsel for the Indemnified Parties
promptly as statements therefor are received; and (iii) after the Effective
Time, Parent will use all reasonable efforts to assist in the vigorous defense
of any such matter, provided that Parent shall not be liable for any settlement
of any claim effected without its written consent, which consent, however, shall
not be unreasonably withheld. Any Indemnified Party wishing to claim
indemnification under this Section 5.7, upon learning of any such claim, action,
suit, proceeding or investigation, shall promptly notify Parent (but the failure
so to notify Parent shall not relieve it from any liability which it may have
under this Section 5.7 except to the extent such failure materially prejudices
Parent), and shall deliver to Parent the undertaking, if any, required by the
IBCL. The Indemnified Parties as a group may retain only one law firm to
represent them with respect to each such matter unless there is, under
applicable standards of professional conduct, a conflict on any significant
issue between the positions of any two or more Indemnified Parties. In any case
in which the approval by the Surviving Corporation is required to effectuate any
indemnification, Parent shall cause the Surviving Corporation to direct, at the
election of any Indemnified Party (or, if more than one Indemnified Party, a
majority of the Indemnified Parties), that the determination of any such
approval shall be made by independent counsel mutually satisfactory to the
Surviving Corporation and the Indemnified Party (or, if applicable, a majority
of the Indemnified Parties). Notwithstanding anything to the contrary contained
elsewhere herein, Parent's agreement to indemnify as set forth above shall be
limited to cover claims only to the extent that those claims are not covered
under the Company's directors' and officers' insurance policies (or any
substitute policies permitted by Section 5.7(b)).
(c) Benefit. The provisions of this Section 5.7 are intended to be for
the benefit of, and shall be enforceable by, each Indemnified Party, his heirs
and his representatives.
5.8 Employee Benefit Plans . As soon as administratively feasible after
the Effective Time, and subject to any provisions to the contrary that may be
set forth in any employment agreement referenced in Section 5.11, the employees
of the Company's Subsidiaries shall be
27
provided with such employee benefits as Parent, directly or through its
Subsidiaries, generally provides to employees of its Subsidiaries from time to
time, including life, medical, hospitalization and disability insurance and sick
pay, personal leave and retirement plan benefits, on a non-discriminatory and
substantially similar basis. For purposes of providing such benefits to
employees of the Company's Subsidiaries after the Effective Time, and subject to
any provisions to the contrary that may be set forth in any employment agreement
referenced in Section 5.11, Parent shall credit such employees for years of
service at the Company prior to the Effective Time for purposes of (i)
eligibility to participate, vesting and eligibility to receive benefits under
any Parent Benefit Plan and (ii) benefit accrual under any sickness, personal
leave or vacation pay plan. At and after the Effective Time, the directors and
officers of the Company's Subsidiaries shall be provided with such directors'
and officers' liability insurance coverage as Parent from time to time
determines to provide to the directors and officers of its Subsidiaries.
5.9 Affiliate Shareholders' Vote. Each Affiliate Shareholder shall (a)
continue to own and shall not assign, transfer, or otherwise dispose of, or in
any way from the date hereof further encumber, his shares of Company Common
Stock except as contemplated by this Agreement or set forth in the Company
Letter, and shall at all times from the date hereof, through the Shareholders'
Meeting, have the full right, power and authority to vote his shares of Company
Common Stock free of restrictions, arrangements or limitations thereon, and (b)
except with respect to any shares assigned, transferred or disposed of as set
forth in the Company Letter, vote, or cause to be voted at the Shareholders'
Meeting and at any annual or special meeting of shareholders of the Company
where such matters arise, all shares of Company Common Stock held of record or
beneficially owned by him on the date hereof and any additional shares that he
may hold or beneficially own after the date hereof (i) in favor of the approval
of this Agreement, the Merger and the other transactions contemplated hereby,
and (ii) against (A) approval of any Acquisition Proposal other than the Merger,
or any other proposal made in opposition to or in competition with the Merger or
any of the other transactions contemplated by this Agreement and (B) any other
action that may reasonably be expected to impede, interfere with, delay,
postpone or attempt to discourage the Merger or any of the other transactions
contemplated by this Agreement or result in a breach of any of the covenants,
representations, warranties or other obligations or agreements of the Company or
any Affiliate Shareholder that would materially and adversely affect the Company
or its ability to consummate the transactions contemplated by this Agreement.
5.10 Releases. At the Closing, each of the directors of the Company and
its Subsidiaries shall execute a written general release (in form and substance
reasonably satisfactory to Parent ) that releases Parent, Merger Sub, the
Surviving Corporation, the Company and each of the Company's Subsidiaries from
any and all claims of any type, contractual or otherwise, known or unknown,
contingent or direct or indirect, that he may have against Parent, Merger Sub,
the Surviving Corporation, the Company or any Subsidiary of the Company as of
the Closing Date, whether as a director, officer or employee of the Company or
any Subsidiary or otherwise, provided that such general release shall expressly
state that there shall be no release effected of (i) claims arising under this
Agreement and the transactions contemplated hereby, (ii) claims arising out of
monies on deposit with any banking Subsidiary of the Company or Parent , (iii)
28
claims for compensation accrued and vested but not yet payable as reflected on
the books and records of the Company or any Subsidiary made available to Parent
and (iv) claims under any deferred compensation or other type agreement
specifically identified with respect to such individual and this Section 5.10 in
the Company Letter.
5.11 Employment Agreements. Within 7 days from the date of this
Agreement, the Company shall cause First Community Bank & Trust to offer to
respectively execute and deliver an employment agreement with Albert R.
Jackson III, Keith Lindauer and William Dean Jackson in the forms respectively
attached as Exhibits 5.11.1, 5.11.2 and 5.11.3., and if acceptable to such
individuals, to execute such agreements within such time period.
5.12 Redemption of Unconverted Convertible Debt Securties. The Company
shall take all necessary actions in sufficient time prior to the Closing to
cause all outstanding convertible debt securities to either be redeemed and
cancelled or converted into Company Common Stock concurrent with the Closing in
accordance with the terms of the redemption and cancellation, or conversion , of
such convertible debt securities in effect on the date of the issuance of such
securities.
ARTICLE VI
CONDITIONS PRECEDENT
6.1 Conditions to Each Party's Obligation to Effect the Merger . The
respective obligation of each party to effect the Merger shall be subject to the
satisfaction prior to the Closing Date of the following conditions:
(a) Shareholder Approval. This Agreement shall have been respectively
approved and adopted by the affirmative vote of the holders of the outstanding
shares of Company Common Stock.
(b) Other Approvals. Other than the filing of the Articles of Merger
provided for by Section 1.1, all authorizations, consents, orders or approvals
of, or declarations or filings with, and all expirations of waiting periods
imposed by, any Governmental Entity (all of the foregoing, "Consents") that are
necessary for the consummation of the Merger, other than immaterial Consents the
failure to obtain which would not have a significant adverse effect on the
consummation of the Merger or on Parent and its Subsidiaries, taken as a whole,
after consummation of the Merger, shall have been filed, occurred or been
obtained (all such permits, approvals, filings and consents and the lapse of all
such waiting periods being referred to as the "Requisite Regulatory Approvals")
and all such Requisite Regulatory Approvals shall be in full force and effect.
(c) No Injunctions or Restraints; Illegality. No temporary restraining
order, preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition (an "Injunction")
29
preventing the consummation of the Merger shall be in effect, nor shall any
proceeding by any Governmental Entity seeking any of the foregoing be pending.
There shall not be any action taken, or any statute, rule, regulation or order
enacted, entered, enforced or deemed applicable to the Merger, which makes the
consummation of the Merger illegal.
(d) Burdensome Condition. There shall not be any action taken, or any
statute, rule, regulation or order enacted, entered, enforced or deemed
applicable to the Merger, by any Governmental Entity which, in connection with
the grant of a Requisite Regulatory Approval, imposes any condition or
restriction upon Parent or its Subsidiaries, the Company or the Surviving
Corporation that would so materially adversely impact the economic or business
benefits of the transactions contemplated by this Agreement as to render
inadvisable the consummation of the Merger.
6.2 Conditions to Obligations of Parent and Merger Sub. The obligations
of Parent and Merger Sub to effect the Merger are subject to the satisfaction of
the following conditions or waiver by Parent on or prior to the Closing Date:
(a) Representations and Warranties. The representations and
warranties of the Company set forth in this Agreement that are qualified as to
materiality shall be true and correct, and the representations and warranties of
the Company set forth in this Agreement that are not so qualified shall be true
and correct in all material respects, in each case as of the date of this
Agreement, and as of the Closing Date as though made on and as of the Closing
Date, except to the extent such representation or warranty expressly relates to
an earlier date (in which case as of such date), and Parent shall have received
a certificate signed on behalf of the Company by the Chief Executive Officer and
the Chief Financial Officer of the Company to such effect; and further, the
representations and warranties of the Company in this Agreement that are
qualified by the Company's knowledge shall be true and correct without regard to
any such knowledge qualification, and if not true and correct, the inaccuracy or
incorrectness of any such representation and warranty (after disregarding any
knowledge qualification solely for purposes of this Section 6.2(a)) shall not in
Parent's good faith determination be reasonably likely to have a Material
Adverse Effect on the Company prior to the Merger or Parent or the Surviving
Corporation after consummation of the Merger.
(b) Performance of Obligations of the Company and Affiliated
Shareholders. The Company and the Affiliated Shareholders shall have performed
in all material respects all obligations required to be performed by it under
this Agreement at or prior to the Closing Date, and Parent shall have received a
certificate signed on behalf of the Company by the Chief Executive Officer and
the Chief Financial Officer of the Company with respect to the Company to such
effect.
(c) Consents Under Agreements. The Company shall have obtained
the consent or approval of each person (other than the Governmental Entities
referred to in Section 6.1(b)) whose consent or approval shall be required in
order to permit the succession by the Surviving Corporation pursuant to the
Merger to any obligation, right or interest of the Company under any loan or
credit agreement, note, mortgage, indenture, lease, license or other agreement
30
or instrument, except those for which failure to obtain such consents and
approvals would not, in the reasonable opinion of Parent, individually or in the
aggregate, have a Material Adverse Effect on the Surviving Corporation or upon
the consummation of the transactions contemplated hereby.
(d) Employment Agreements. Each of the employment agreements
contemplated by Section 5.11 shall have been respectively executed and delivered
within 7 days from the date of this Agreement.
6.3 Conditions to Obligations of the Company . The obligations of the
Company to effect the Merger are subject to the satisfaction or waiver by the
Company on or prior to the Closing Date of the following conditions:
(a) Representations and Warranties. The representations and
warranties of Parent and Merger Sub set forth in this Agreement that are
qualified as to materiality shall be true and correct, and the representations
and warranties of Parent and Merger Sub set forth in this Agreement that are not
so qualified shall be true and correct in all material respects, in each case as
of the date of this Agreement and as of the Closing Date as though made on and
as of the Closing Date, except to the extent such representation or warranty
expressly relates to another date (in which case as of such date), and the
Company shall have received a certificate signed on behalf of Parent and Merger
Sub by the Chief Executive Officer and the Chief Financial Officer of Parent and
Merger Sub to such effect.
(b) Performance of Obligations of Parent and Merger Sub.
Parent and Merger Sub shall have performed in all material respects all
obligations required to be performed by them under this Agreement at or prior to
the Closing Date, and the Company shall have received a certificate signed on
behalf of Parent and Merger Sub by the Chief Executive Officer and the Chief
Financial Officer of Parent and Merger Sub to such effect.
(c) Consents Under Agreements. Parent and Merger Sub shall
have obtained the consent or approval of each person (other than the
Governmental Entities referred to in Section 6.1(b)) whose consent or approval
shall be required in connection with the transactions contemplated hereby under
any loan or credit agreement, note, mortgage, indenture, lease, license or other
agreement or instrument, except those for which failure to obtain such consents
and approvals would not, in the reasonable opinion of the Company, individually
or in the aggregate, have a Material Adverse Effect on Parent or upon the
consummation of the transactions contemplated hereby.
(d) Fairness Opinion. The Company shall have received an
opinion from Austin and Associates, dated as of the date of the Proxy Statement
and in form and substance reasonably satisfactory to the Company, that the
Merger is fair to the shareholders of the Company from a financial point of
view.
31
ARTICLE VII
TERMINATION; AMENDMENT; WAIVER
7.1 Termination . This Agreement may be terminated at any time prior to
the Effective Time of the Merger, whether before or after the approval of this
Agreement by the shareholders of the Company:
(a) by mutual written consent of Parent and the Company;
(b) by either Parent or the Company:
(i) if, at a duly held shareholders meeting of the
Company or any adjournment thereof at which approval of this Agreement is voted
upon, the approval of the shareholders of the Company shall not have been
obtained;
(ii) if the Merger shall not have been consummated
on or before June 30, 2003, unless the failure to consummate the Merger is the
result of a willful and material breach of this Agreement by the party seeking
to terminate this Agreement;
(iii) if any court of competent jurisdiction or
other Governmental Entity shall have issued an order, decree or ruling or taken
any other action permanently enjoining, restraining or otherwise prohibiting the
Merger and such order, decree, ruling or other action shall have become final
and non-appealable;
(iv) in the event of a breach by the other party of
any representation, warranty, covenant or other agreement contained in this
Agreement which (A) would give rise to the failure of a condition set forth in
Section 6.2(a) or 6.2(b) or Section 6.3(a) or 6.3(b), as applicable, and (B)
cannot be or has not been cured within 30 days after the giving of written
notice to the breaching party of such breach ("Material Breach") (provided that
the terminating party is not then in breach of any representation, warranty,
covenant or other agreement that would give rise to a failure of a condition
described in clause (A) above);
(c) by either Parent or the Company in the event that (i) all
the conditions to the obligation of such party to effect the Merger set forth in
Section 6.1 shall have been satisfied and (ii) any condition to the obligation
of such party to effect the Merger set forth in Section 6.2 (in the case of
Parent) or Section 6.3 ( in the case of the Company) is not capable of being
satisfied prior to the date on which this Agreement may be terminated pursuant
to Section 7.1(b)(ii); and
(d) by the Company, subject to Section 7.5(b), if the Board of
Directors of the Company shall concurrently approve, and the Company shall
concurrently enter into, a definitive agreement providing for the implementation
of the transactions contemplated by an Acquisition Proposal; provided, however,
that (i) the Company is not then in breach of Section 4.2 or in breach of any
other representation, warranty, covenant or agreement that would give rise to a
32
failure of a condition set forth in Section 6.2(a) or 6.2(b); (ii) the Board of
Directors of the Company shall have complied with Section 7.5(b) in connection
with such Acquisition Proposal and (iii) no termination pursuant to this Section
7.1(d) shall be effective unless the Company shall simultaneously make the
payment required by Section 7.2(a).
7.2 Effect of Termination .
(a) In the event that any person shall make an Acquisition
Proposal with respect to the Company and thereafter (i) this Agreement is
terminated (A) pursuant to Section 7.1(b)(i), (B) pursuant to Section 7.1(b)(ii)
(if at the time of termination (x) the Company is in breach of any
representation, warranty, covenant or other agreement that would give rise to a
failure of a condition set forth in Section 6.2(a) or 6.2(b) and (y) such breach
cannot be or has not been cured within 30 days after the Company becomes aware
of such breach or such shorter period that may elapse between the date the
Company becomes aware of such breach and the time of termination), (C) pursuant
to Section 7.1(b)(iii) (if at the time of termination (x) the Company is in
breach of any representation, warranty, covenant or other agreement that would
give rise to a failure of a condition set forth in Section 6.2(a) or 6.2(b) and
(y) such breach cannot be or has not been cured within 30 days after the Company
becomes aware of such breach or such shorter period that may elapse between the
date the Company becomes aware of such breach and the time of termination), (D)
by Parent pursuant to Section 7.1(b)(iv), (E) by Parent pursuant to Section
7.1(c) unless the termination relates to the failure of a condition set forth in
Section 6.2 (c) or (d), or (F) by the Company pursuant to Section 7.1(d), and
(ii) a definitive agreement with respect to an Acquisition Proposal is executed,
or an Acquisition Proposal is consummated, at or within 12 months after such
termination, then Parent shall be paid a fee of $460,000, which amount shall be
payable by wire transfer of same day funds on the date such agreement is
executed, or such Acquisition Proposal is consummated, as applicable. The
Company acknowledges that the agreements contained in this Section 7.2(a) are an
integral part of the transactions contemplated by this Agreement, and that
without these agreements, Parent would not enter into this Agreement;
accordingly, if the Company fails to promptly pay the amount due pursuant to
this Section 7.2(a), and, in order to obtain such payment, Parent commences a
suit that results in a judgment against the Company for the fees set forth in
this Section 7.2(a), the Company shall also pay to Parent its costs and expenses
(including reasonable attorneys' fees) in connection with such suit.
(b) In the event of termination of this Agreement by either
Parent or the Company as provided in Section 7.1, this Agreement shall forthwith
become void and have no effect, without any liability or obligation on the part
of Parent, Merger Sub or the Company, other than the provisions of Section 5.1
(penultimate sentence), Section 5.7, this Section 7.2 and Article VIII and
except to the extent that such termination results from the willful and material
breach by a party of any its representations, warranties, covenants or other
agreements set forth in this Agreement.
7.3 Amendment. This Agreement may be amended by the parties at any time
before or after the approval of this Agreement by the shareholders of the
Company; provided, however, that after such approval by the shareholders of the
33
Company, there shall be made no amendment that pursuant to the IBCL requires
further approval by the shareholders of the Company without the further approval
of such shareholders. This Agreement may not be amended except by an instrument
in writing signed on behalf of each of the parties.
7.4 Extension; Waiver. At any time prior to the Effective Time of the
Merger, the parties may (i) extend the time for the performance of any of the
obligations or other acts of the other parties; (ii) waive any inaccuracies in
the representations and warranties contained in this Agreement or in any
document delivered pursuant to this Agreement; or (iii) subject to the proviso
of Section 7.3, waive compliance with any of the agreements or conditions
contained in this Agreement. Any agreement on the part of a party to any such
extension or waiver shall be valid only if set forth in an instrument in writing
signed on behalf of such party. The failure of any party to this Agreement to
assert any of its rights under this Agreement or otherwise shall not constitute
a waiver of such rights.
7.5 Procedure for Termination, Amendment, Extension or Waiver.
(a) A termination of this Agreement pursuant to Section 7.1, an
amendment of this Agreement pursuant to Section 7.3 or an extension or waiver
pursuant to Section 7.4 shall, in order to be effective, require, in the case of
Parent, Merger Sub or the Company, action by its Board of Directors or, in the
case of an extension or waiver pursuant to Section 7.4, the duly authorized
designee of its Board of Directors.
(b) The Company shall provide to Parent written notice prior to any
termination of this Agreement pursuant to Section 7.1(d) advising Parent (i)
that the Board of Directors of the Company in the exercise of its good faith
judgment as to its fiduciary duties to the shareholders of the Company under
applicable law, after receipt of written advice of outside legal counsel, has
determined (on the basis of such Acquisition Proposal and the terms of this
Agreement, as then in effect) that such termination is required in connection
with an Acquisition Proposal that is more favorable to the shareholders of the
Company than the transactions contemplated by this Agreement (taking into
account all terms of such Acquisition Proposal and this Agreement, including all
conditions) and (ii) as to the material terms of any such Acquisition Proposal.
At any time after five business days following receipt of such notice, the
Company may terminate this Agreement as provided in Section 7.1(d) only if the
Board of Directors of the Company determines that such Acquisition Proposal is
more favorable to the shareholders of the Company than the transactions
contemplated by this Agreement (taking into account all terms of such
Acquisition Proposal and this Agreement, including all conditions, and which
determination shall be made in light of any revised proposal made by Parent
prior to the expiration of such five business day period) and concurrently
enters into a definitive agreement providing for the implementation of the
transactions contemplated by such Acquisition Proposal.
34
ARTICLE VIII
GENERAL PROVISIONS
8.1 Non-Survival of Representations and Warranties . None of the
representations and warranties in this Agreement or in any instrument delivered
pursuant to this Agreement shall survive the Effective Time of the Merger. This
Section 8.1 shall not limit any covenant or agreement of the parties that by its
terms contemplates performance after the Effective Time of the Merger.
8.2 Notices. All notices and other communications required or sought to
be given hereunder shall be in writing and shall be deemed given upon (i)
transmitter's confirmation of receipt of a facsimile transmission, (ii)
confirmed delivery by a standard overnight carrier or when delivered by hand or
(iii) the expiration of five business days after the day when mailed by
certified or registered mail, postage prepaid, addressed to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
(a) If to Parent or
Merger Sub, to: MainSource Financial Group, Inc.
201 N. Broadway
Greensburg, Indiana 47240
Attn: Donald A. Benziger,
Senior Vice President and
Chief Financial Officer
Telecopy No. (812) 663-4812
With a copy (which
shall not constitute
notice) to: David W. Harper, Esq.
The Summit Suite 110
4350 Brownsboro Road
Louisville, Kentucky 40207
Telecopy No. (502) 893-4503
(b) If to the Company, to: First Community Bancshares, Inc.
34 W. Jefferson Street
P.O. Box 970
Franklin, Indiana 46106
Attn: Albert R. Jackson, III,
Chief Executive Officer
Telecopy No. (317) 346-7210
35
With a copy (which
shall not constitute
notice) to: O. Wayne Davis, Esq.
Henderson Daily Withrow and DeVoe
2600 One Indiana Square
Indianapolis, Indiana 46204-2071
Telecopy No. (317) 639-0191
and
(d) If to any Affiliated Shareholder,
to: [Name of Noticed Affiliate Shareholder]
[Address of Record on Company's Books]
8.3 Interpretation . Unless the context otherwise requires, words
describing the singular number shall include the plural and vice versa, and
words denoting any gender shall include all genders and words denoting natural
persons shall include corporations and other entities and vice versa. Any table
of contents, index of terms, headings and captions contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. When a reference is made in this Agreement to
any "Section, "Annex," "Exhibit" or "Schedule," such reference shall be to a
section, annex, exhibit or schedule to this Agreement unless otherwise
indicated. Whenever the words "include," "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation." Whenever the words "or any Subsidiary", "or any Subsidiaries," "nor
any Subsidiary" or "nor any Subsidiaries" are used in this Agreement in
connection with a preceding reference to a party to this Agreement, they shall
be deemed to refer to a Subsidiary or Subsidiaries of that party. The phrase
"made available" in this Agreement shall mean that the information referred to
has been made available if requested by the party to whom such information is to
be made available, and the correlative phrase "make available" shall mean that
such information shall be promptly made available if so requested. The phrases
"the date of this Agreement," "the date hereof" and terms of similar import,
unless the context otherwise requires, shall be deemed to refer to March 26,
2003. The "knowledge" of Parent, Merger Sub or the Company for purposes of
certain provisions of this Agreement qualified by the knowledge of any of such
party shall mean the actual knowledge, without additional inquiry, of any one or
more of the directors and executive officers of that party and its direct and
indirect Subsidiaries.
8.4 Assignment; Binding Effect; Benefit . Neither this Agreement nor
any of the rights, interests or obligations hereunder shall be assigned by any
of the parties hereto (whether by operation of law or otherwise) without the
prior written consent of the other parties. Subject to the preceding sentence,
this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns. Notwithstanding
anything contained in this Agreement to the contrary, except for the provisions
of Article II and Sections 5.7 and 5.8 (collectively, the "Third Party
Provisions"), nothing in this Agreement, express or implied, is intended to
36
confer on any person other than the parties hereto or their respective heirs,
successors, executors, administrators and assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement. The Third Party
Provisions may be enforced on behalf of the Company or the other respective
beneficiaries thereof by those individuals who were the directors of the Company
immediately prior to the Effective Time and also by the holder of Company Common
Stock converted in the Merger, the Indemnified Party or the officer or employee
that such provisions respectively are intended to benefit and their respective
heirs and representatives. Parent shall pay all expenses, including attorneys'
fees, that may be incurred by such directors or other persons in enforcing the
Third Party Provisions.
8.5 Governing Law . This Agreement shall be governed by and construed
in accordance with the laws of the State of Indiana regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
8.6 Counterparts . This Agreement may be executed in separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument. Each
counterpart may consist of a number of copies hereof each signed by less than
all, but together signed by all of the parties hereto. It shall not be
necessary, in making proof of this Agreement or any counterpart hereof, to
produce or account for any of the other counterparts.
8.7 Severability . Any term or provision of this Agreement that is
invalid or unenforceable shall be ineffective to the extent of such invalidity
or unenforceability without rendering invalid or unenforceable the remaining
terms and provisions of this Agreement. If any provision of this Agreement is so
broad as to be unenforceable, the provision shall be interpreted to be only so
broad as is enforceable.
8.8 Incorporation of Documents . The Company Letter, Parent Letter, and
all Annexes, Exhibits and Schedules, if any, attached hereto and referred to
herein are incorporated into this Agreement and made a part hereof for all
purposes as if fully set forth herein.
8.9 Enforcement. The parties agree that irreparable damage would occur
in the event that any of the provisions of this Agreement were not performed in
accordance with its specific terms or were otherwise breached. It is accordingly
agreed that the parties shall be entitled to seek an injunction or injunctions
to prevent breaches of this Agreement and to enforce specifically the terms and
provisions of this Agreement in any court of the United States located in the
State of Indiana or in Indiana state court, this being in addition to any other
remedy to which a party is entitled at law or in equity.
8.10 Waivers. Except as provided in this Agreement or in any waiver
pursuant to Section 7.4, no action taken pursuant to this Agreement, including
any investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representations,
warranties, covenants or agreements contained in this Agreement. The waiver by
any party hereto of a breach of any provision hereunder shall not operate or be
construed as a waiver of any prior or subsequent breach of the same or any other
provision hereunder.
37
8.11 Entire Agreement . This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof.
[Signature page follows]
38
IN WITNESS WHEREOF, each of the corporate parties has caused this
Agreement to be signed on its behalf by its officers thereunto duly authorized,
and each of the Affiliated Shareholders has signed this Agreement, in each case
as of the date first set out in the first paragraph of this Agreement.
("Parent")
MAINSOURCE FINANCIAL GROUP, INC.
By: /s/ James L. Saner, Sr.
--------------------------
James L. Saner, Sr., President and
Chief Executive Officer
("Merger Sub")
FCBY MERGER CORPORATION
By: /s/ James L. Saner, Sr.
--------------------------
President and Chief Executive Officer
(the "Company")
FIRST COMMUNITY BANCSHARES, INC.
By: /s/ Albert R. Jackson, III
--------------------------
Albert R. Jackson, III,
Chief Executive Officer
(the "Affiliated Shareholders")
/s/ Albert R. Jackson, Jr.
--------------------------
Albert R. Jackson, Jr.
/s/ Albert R. Jackson, III
--------------------------
Albert R. Jackson, III
/s/ Frank D. Neese
--------------------------
Frank D. Neese
/s/ artin Umbarger
--------------------------
Roy Martin Umbarger
/s/ Merrill M. Wesemann, M. D.
--------------------------
Merrill M. Wesemann, M. D.
39