EXHIBIT 2.1
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AGREEMENT
AND
PLAN OF MERGER
BY AND BETWEEN
MAHASKA INVESTMENT COMPANY
AND
MIDWEST BANCSHARES, INC.
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TABLE OF CONTENTS
ARTICLE I THE MERGER.................................................. 1
Section 1.1 Merger and the Surviving Corporation........................ 1
Section 1.2 Conversion of Stock......................................... 3
Section 1.3 Intentionally Omitted....................................... 4
Section 1.4 Intentionally Omitted....................................... 5
Section 1.5 Adjustments for Dilution and Other Matters.................. 5
Section 1.6 Conversion of Dissenting Company Stock...................... 5
Section 1.7 Exchange Procedure.......................................... 5
Section 1.8 Withholding Rights.......................................... 6
ARTICLE II REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY... 7
Section 2.1 Organization of the Company................................. 7
Section 2.2 Company Stock............................................... 7
Section 2.3 Company Subsidiaries........................................ 8
Section 2.4 Corporate Authorization..................................... 9
Section 2.5 Financial Statements Previously Delivered................... 9
Section 2.6 Financial Statements to Be Delivered........................ 10
Section 2.7 Documents Other Than Financial Statements Previously
Delivered.................................................. 10
Section 2.8 Undisclosed Liabilities..................................... 11
Section 2.9 Title to Properties; Leases; Violations; Environmental
Matters.................................................... 11
Section 2.10 Governmental Regulation..................................... 13
Section 2.11 Litigation.................................................. 15
Section 2.12 Taxes....................................................... 16
Section 2.13 Contracts................................................... 16
Section 2.14 Insurance................................................... 17
Section 2.15 Minute Books................................................ 17
Section 2.16 Employee Benefit Plan Matters............................... 18
Section 2.17 Powers of Attorney.......................................... 20
Section 2.18 Conduct of Business Since December 31, 1997................. 20
Section 2.19 Conduct of Business Pending Merger.......................... 20
Section 2.20 Oral Commitments............................................ 22
Section 2.21 Loans....................................................... 22
Section 2.22 Derivative Transactions..................................... 23
Section 2.23 Fiduciary Responsibilities.................................. 23
Section 2.24 No Broker's or Finder's Fee................................. 23
Section 2.25 Other Acquisition Proposals................................. 24
Section 2.26 [Intentionally Omitted]..................................... 24
Section 2.27 Union Relations............................................. 24
Section 2.28 Patents, Trademarks, Etc.................................... 24
Section 2.29 Takeover Laws Not Applicable................................ 25
Section 2.30 Material Interests of Certain Persons....................... 25
Section 2.31 Disclosure; Information in the Proxy Statement/Prospectus... 25
Section 2.32 Year 2000 Compliant......................................... 26
Section 2.33 No Company Investment in Mahaska Common Stock............... 26
Section 2.34 Board Recommendation........................................ 26
Section 2.35 Vote Required............................................... 26
Section 2.36 Shareholder Appraisal Rights................................ 26
ARTICLE III REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF MAHASKA... 27
Section 3.1 Organization of Mahaska..................................... 27
Section 3.2 Mahaska Stock............................................... 27
Section 3.3 Corporate Authorization..................................... 28
Section 3.4 Financial Statements Previously Delivered................... 28
Section 3.5 Governmental Regulation..................................... 29
Section 3.6 Disclosure; Information in the Proxy Statement/Prospectus... 30
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Section 3.7. No Mahaska Investment in the Company's Common Stock......... 30
Section 3.8. Board Recommendation........................................ 30
Section 3.9. Vote Required............................................... 30
Section 3.10 Undisclosed Liabilities..................................... 30
Section 3.11 Environmental Matters....................................... 31
Section 3.12 Governmental Regulation..................................... 31
Section 3.13 Litigation.................................................. 33
Section 3.14 Loans....................................................... 33
Section 3.15 Derivative Transactions..................................... 34
Section 3.16 Takeover Laws Not Applicable................................ 34
Section 3.17 Year 2000 Compliant......................................... 34
ARTICLE IV ADDITIONAL AGREEMENTS......................................... 35
Section 4.1 Regulatory Approvals........................................ 35
Section 4.2 Meeting of the Company's Shareholders....................... 35
Section 4.3 Cooperation in Registration of Mahaska Common Stock......... 35
Section 4.4 Meeting of Mahaska Shareholders............................. 36
Section 4.5 Registration and Listing of Mahaska Common Stock............ 36
Section 4.6 Cooperation in Preparation of Proxy Statement/Prospectus.... 36
Section 4.7 Pooling of Interests Opinion and Tax Opinion................ 36
Section 4.8 Access and Information...................................... 36
Section 4.9 Lists of Company Stockholders............................... 37
Section 4.10 Continuing Effect of Representations and Warranties......... 37
Section 4.11 Current Information......................................... 37
Section 4.12 Termination Payment......................................... 38
Section 4.13 Reasonable Efforts.......................................... 39
Section 4.14 Letter of Company's Accountants............................. 39
Section 4.15 Letter of Mahaska's Accountants............................. 39
Section 4.16 Affiliates.................................................. 40
Section 4.17 Company Accruals and Reserves............................... 40
Section 4.18 Benefit Plans............................................... 41
Section 4.19 Directors' and Officers' Indemnification Insurance.......... 42
Section 4.20 Dividend Coordination....................................... 42
Section 4.21 Access and Information...................................... 42
Section 4.22 Current Information......................................... 43
ARTICLE V CONDITIONS PRECEDENT TO OBLIGATIONS OF MAHASKA AND THE COMPANY.. 43
Section 5.1 Company Stockholder Approval................................ 43
Section 5.2 Regulatory Approvals and Legal Requirements................. 43
Section 5.3 Securities Act Registration, Blue Sky Registration
or Exemption and Nasdaq Listing............................. 43
Section 5.4 Pooling of Interests Opinion and Tax Opinion................ 44
ARTICLE VI CONDITIONS PRECEDENT TO OBLIGATION OF MAHASKA................... 44
Section 6.1 Representations, Warranties and Covenants................... 44
Section 6.2 Adverse Changes............................................. 44
Section 6.3 Litigation.................................................. 44
Section 6.4 Additional Due Diligence Period............................. 44
Section 6.5 Dissenting Company Stock.................................... 45
Section 6.6 Accountants' Letters........................................ 45
Section 6.7 Environmental Assessments................................... 45
Section 6.8 Opinion of the Company's Counsel............................ 45
Section 6.9 Legal Matters............................................... 45
Section 6.10 Updated Disclosure Statement................................ 45
Section 6.11 Nonperformance and Materially Impaired Assets............... 46
Section 6.12 Employment Agreements....................................... 46
Section 6.13 Affiliate Agreements........................................ 46
Section 6.14 Fairness Opinion............................................ 46
Section 6.15 Company Costs Paid.......................................... 46
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ARTICLE VII CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY........... 46
Section 7.1 Representations, Warranties and Covenants................... 46
Section 7.2 Opinion of Counsel to Mahaska............................... 47
Section 7.3 Accountants' Letters........................................ 47
Section 7.4 Legal Matters............................................... 47
Section 7.5 Reserved.................................................... 47
Section 7.6 Fairness Opinion............................................ 47
Section 7.7 Adverse Changes............................................. 47
Section 7.8 Litigation.................................................. 47
ARTICLE VIII CLOSING..................................................... 47
Section 8.1 Date, Time and Place of Closing............................. 47
Section 8.2 Deliveries of Documents..................................... 48
Section 8.3 Merger to Be Made Effective................................. 48
ARTICLE IX AMENDMENT AND TERMINATION................................... 48
Section 9.1 Amendment................................................... 48
Section 9.2 Termination................................................. 48
ARTICLE X GENERAL PROVISIONS.......................................... 50
Section 10.1 Survival of Representations, Warranties and Agreements...... 50
Section 10.2 Notices..................................................... 50
Section 10.3 Expenses and Certain Required Accruals...................... 51
Section 10.4 Further Assurances.......................................... 51
Section 10.5 Publicity................................................... 51
Section 10.6 Waivers..................................................... 52
Section 10.7 Entire Agreement and Binding Effect......................... 52
Section 10.8 Governing Law............................................... 52
Section 10.9 Consent to Jurisdiction..................................... 52
Section 10.10Counterparts................................................ 52
Section 10.11Captions.................................................... 52
EXHIBITS
A -- Delaware Certificate of Merger
B -- Iowa Articles of Merger
C -- Opinion of Counsel to Company
D -- Form of Employment Agreement For Each of William D. Hassel
and Robert D. Maschmann
E -- Opinion of Counsel to Mahaska
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AGREEMENT
AND
PLAN OF MERGER
THIS AGREEMENT is made and entered into as of the 2nd day of February, 1999,
by and between MAHASKA INVESTMENT COMPANY, an Iowa corporation (hereinafter
referred to as "Mahaska"), and MIDWEST BANCSHARES, INC., a Delaware corporation
(hereinafter referred to as the "Company");
WITNESSETH:
WHEREAS, Mahaska is a registered bank holding company under the Bank Holding
Company Act of 1956, as amended (hereinafter referred to as the "BHC Act"); and
WHEREAS, the Company is a unitary savings and loan holding company subject
to oversight by the Office of Thrift Supervision (the "OTS"); and
WHEREAS, the respective Boards of Directors of Mahaska and the Company have
approved this Agreement providing for the merger (hereinafter referred to as the
"Merger") of the Company into Mahaska in accordance with the terms hereof, and
have determined that it is in the respective best interests of Mahaska and the
Company and their respective stockholders that the Company should merge with and
into Mahaska in accordance with the terms hereof; and
WHEREAS, for Federal income tax purposes, it is intended that the Merger
shall qualify as a reorganization under the provisions of Section 368(a)(1)(A)
of the Internal Revenue Code of 1986, as amended (the "Code"); and
WHEREAS, for accounting purposes, it is intended that the Merger shall
qualify for pooling of interests accounting treatment;
NOW, THEREFORE, in consideration of the premises and the representations,
warranties and agreements herein contained, the parties hereto hereby agree as
follows:
ARTICLE I
THE MERGER
Section 1.1. Merger and the Surviving Corporation. (a) Subject to the terms
and conditions of this Agreement, the Company shall be merged with and into
Mahaska (which shall be the surviving corporation in the Merger) in accordance
with the Delaware General Corporation Law (the "Delaware Law") and the Iowa
Business Corporation Act (the "Iowa Act"). The Merger shall become effective
upon the filing with the respective Secretary of States of Delaware and Iowa of
a properly executed certificate of merger and articles of merger with respect
thereto in substantially the forms which are attached hereto as Exhibits A and
B, respectively, and hereby made a part hereof (hereinafter referred to
collectively as the "Certificates of Merger") or at such later time, if any, as
may be agreed to by the parties hereto and specified in the Certificates of
Merger. The time when the Merger shall become effective is hereinafter referred
to as the "Effective Time." For purposes hereof, the term "Constituent
Corporations" shall mean Mahaska and the Company and the term "Surviving
Corporation" shall mean Mahaska as the corporation surviving in the Merger.
(b) At the Effective Time, by virtue of the Merger, the separate existence
of the Company shall cease and the Company shall be merged with and into Mahaska
and all the rights, privileges, powers and franchises, as well of a public as of
a private nature, of each of Mahaska and the Company and all property, real,
personal and mixed, and all debts due on whatever account, including things in
action, and all and every other interest of or belonging to or due to each of
Mahaska and the Company shall be vested in the Surviving Corporation and shall
be as effectually the property of the Surviving Corporation as they were of
Mahaska and the Company without further act or deed, and the Surviving
Corporation shall be responsible and liable for all the debts, liabilities and
duties of each of Mahaska and the Company, all with the full effect provided for
in the Delaware Law and Iowa Act. If at any time the Surviving Corporation shall
determine or be advised that any further action is necessary or desirable to
vest in the Surviving Corporation, according to the terms hereof, title to any
property or any rights of the Constituent Corporations or to carry out the
purpose of this Agreement, the last acting officers and directors of the Company
to the extent such persons are available, or the corresponding officers and
directors of the Surviving Corporation, as the case may be, shall be authorized
to take such action.
(c) The articles of incorporation of Mahaska in effect immediately prior to
the Effective Time shall be the articles of incorporation of the Surviving
Corporation at and after the Effective Time, until amended in accordance with
the provisions thereof and with the Delaware Law and Iowa Act. The Surviving
Corporation shall be governed by the laws of the State of Iowa. At the Effective
Time, the Surviving Corporation shall be appointed to receive service of process
from the State of Delaware.
(d) The by-laws of Mahaska in effect immediately prior to the Effective Time
shall be the by-laws of the Surviving Corporation at and after the Effective
Time, until altered, amended or repealed as provided therein and in the
certificate of incorporation of the Surviving Corporation.
(e) The directors of Mahaska in office immediately prior to the Effective
Time together with William D. Hassel, who shall be elected by the directors of
Mahaska subject to their fiduciary duties, to fill an existing vacancy (for a
term expiring at the annual meeting of shareholders of the Surviving Corporation
in the year 2000) shall be the directors of the Surviving Corporation at and
after the Effective Time, until their successors are elected in accordance with
the by-laws of the Surviving Corporation. Subject to the fiduciary duties of the
directors of Mahaska, Mahaska shall select and nominate Mr. Hassel as a director
on its management slate of directors presented for approval to its shareholders
at its annual meeting of shareholders in the year 2000 for a term of three
years, and shall use its best efforts to cause him to be approved and elected.
(f) The officers of Mahaska in office immediately prior to the Effective
Time shall be the officers of the Surviving Corporation at and after the
Effective Time, holding the offices in the Surviving Corporation which they held
in Mahaska immediately prior thereto, until their successors are elected or
appointed in accordance with the by-laws of the Surviving Corporation.
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Section 1.2. Conversion of Stock. Subject to the provisions of this Article
I, at the Effective Time, by virtue of the Merger and without any action on the
part of the holders thereof, the shares of the capital stock of the Constituent
Corporations shall be converted as follows:
(a) Each share of the Common Stock, $5.00 par value, of Mahaska which is
issued and outstanding immediately prior to the Effective Time shall, by virtue
of the Merger, remain outstanding as one share of Common Stock, $5.00 par value,
of the Surviving Corporation.
(b) Each share of the Common Stock, $5.00 par value, of Mahaska which is
held in the treasury of Mahaska immediately prior to the Effective Time shall be
converted into one share of Common Stock, $5.00 par value, of the Surviving
Corporation held in the treasury of the Surviving Corporation.
(c) Each share of Company Common Stock, if any, which is held in the
treasury of the Company immediately prior to the Effective Time shall be
cancelled.
(d) Any options to acquire shares of Company Common Stock or securities
convertible into, or exchangeable for, Company Common Stock, whether or not then
exercisable shall at the Effective Time be converted into the right to acquire
shares of the Surviving Corporation under the Mahaska Investment Company 1996
Stock Incentive Plan (the "Mahaska Plan"), provided, however, to the extent that
the plan and agreements pursuant to which the options were granted are more
favorable than the "Mahaska Plan," then the more favorable provisions of those
will remain in effect. The right to receive Mahaska Common Stock upon the
exercise of any such option to acquire Company Common Stock shall have a maximum
aggregate exercise period of ten (10) years from the original granting date of
such option to acquire shares of Company Common Stock. At all times after the
Effective Time, Mahaska shall reserve for issuance such number of shares of
Mahaska Common Stock as are necessary so as to permit the exercise of options to
acquire shares of Company Common Stock in the manner contemplated herein and the
instruments pursuant to which such options were granted or issued. Mahaska shall
make all filings required under federal and state securities laws no later than
the Effective Time so as to permit the exercise of the referenced options and
for the sale of the shares received by the person making such exercise at and
after the Effective Time and Mahaska shall continue to make such filings
thereafter as may be necessary to permit the continued exercise of the
referenced options and the sale of shares received upon such exercise.
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(e) Subject to the provisions of Section 1.5 hereof, each share of Company
Common Stock issued and outstanding immediately prior to the Effective Time,
other than any shares of Dissenting Company Stock (as such term is defined in
Section 1.2(f) hereof), shall be converted into the right to receive one (1)
share of Common Stock $5.00 par value, of the Surviving Corporation (hereinafter
referred to as "Per Share Stock Consideration").
(f) Each outstanding share of Company Common Stock as to which a written
demand for appraisal is filed in accordance with Section 262 of the Delaware
General Corporation Law at or prior to the Company Meeting (as such term is
defined in Section 4.2 hereof) and not withdrawn at or prior to the Company
Meeting and which is not voted in favor of the Merger shall not be converted
into or represent a right to receive Mahaska Common Stock unless and until the
holder thereof shall have failed to perfect, or shall have effectively withdrawn
or lost his or her right to appraisal of and payment for his or her Company
Common Stock under said Section 262 at which time his or her shares shall be
converted into Mahaska Common Stock as set forth in Section 1.2(e) hereof in
accordance with Section 1.6 hereof. All such shares of Company Common Stock as
to which such a written demand for appraisal is so filed and not withdrawn at or
prior to the Company Meeting and which are not voted in favor of the Merger,
except any such shares of Company Common Stock the holder of which, prior to the
Effective Time, shall have effectively withdrawn or lost his or her right to
appraisal and payment for his or her shares of Company Common Stock under said
Section 262 of the Delaware Law, are hereinafter referred to as "Dissenting
Company Stock." The Company shall give Mahaska prompt notice upon receipt by the
Company of any written demands for appraisal rights, withdrawal of such demands,
and any other written communications delivered to the Company pursuant to said
Section 262 of the Delaware Law, and the Company shall give Mahaska the
opportunity to direct all negotiations and proceedings with respect to such
demands. The Company shall not voluntarily make any payment with respect to any
demands for appraisal rights and shall not, except with the prior written
consent of Mahaska, settle or offer to settle any such demands. Each holder of
Company Common Stock who becomes entitled, pursuant to the provisions of said
Section 262, to payment for his or her shares of Company Common Stock under the
provisions of said Section 262 shall receive payment therefor from the Surviving
Corporation and such shares of Company Common Stock shall be cancelled.
(g) Each of the shares of capital stock of the Company held by Mahaska or
any of its wholly-owned subsidiaries or the Company or any of its wholly-owned
subsidiaries, other than shares held by Mahaska or any of its wholly-owned
subsidiaries or the Company or any of its wholly-owned subsidiaries in a
fiduciary capacity or as a result of debts previously contracted, shall be
cancelled and retired at the Effective Time and no consideration shall be issued
in exchange therefor.
(h) At the Effective Time, the stock transfer books of the Company shall be
closed as to the holders of capital stock of the Company immediately prior to
the Effective Time and no transfer of capital stock of the Company by any such
holder shall thereafter be made or recognized. If, after the Effective Time,
certificates which represented shares of Company Common Stock immediately prior
to the Effective Time are properly presented in accordance with Section 1.7
hereof to the exchange agent, Illinois Stock Transfer Company (hereinafter
referred to as the "Exchange Agent"), such certificates shall be cancelled and
exchanged for certificates representing the number of whole shares of Mahaska
Common Stock into which the Company Common Stock represented thereby was
converted in the Merger. Any other provision of this Agreement notwithstanding,
neither Mahaska, the Company, the Surviving Corporation nor the Exchange Agent
shall be liable to a 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.
Section 1.3. Intentionally Omitted.
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Section 1.4. Intentionally Omitted.
Section 1.5. Adjustments for Dilution and Other Matters. If at the
Effective Time the Company shall have outstanding more shares of Company Common
Stock than are contemplated to be outstanding by the representation and warranty
contained in Section 2.2 hereof after giving effect to the exercise of all
options described in Section 2.2(a)(iii), then, at Mahaska's election and
notwithstanding other provisions hereof and without limiting any of its other
rights hereunder, the Per Share Stock Consideration shall be appropriately
adjusted downward. In the event Mahaska changes (or establishes a record date
for changing) the number of shares of Mahaska Common Stock issued and
outstanding prior to the Effective Time as a result of a stock split, stock
dividend, recapitalization or similar transaction with respect to outstanding
Mahaska Common Stock and the record date thereof shall occur prior to the
Effective Time, the Per Share Stock Consideration shall be proportionately
adjusted. Such adjusted Per Share Stock Consideration shall be utilized for
adjusting the number of shares of Mahaska Common Stock that may be acquired upon
the exercise of options pursuant to Section 1.2(d) and adjusting the
corresponding exercise price per share. If such adjustment results in any holder
of Company Common Stock being entitled to a fractional share interest upon the
exchange of all of such holder's Company Common Stock of Mahaska Common Stock,
Mahaska or the Exchange Agent shall pay cash in lieu of such fractional share
interest based upon the closing price for Mahaska Common Stock on the last
trading day preceding the Effective Time.
Section 1.6. Conversion of Dissenting Company Stock. If prior to the
Effective Time any stockholder of the Company shall fail to perfect, or shall
effectively withdraw or lose, his or her right to appraisal of and payment for
his or her shares of Dissenting Company Stock under Section 262 of the Delaware
Law, the Dissenting Company Stock of such holder shall be treated for purposes
of this Article I like any other shares of outstanding Company Common Stock. If
after the Effective Time any holder of Company Common Stock shall fail to
perfect, or shall effectively withdraw or lose, his or her right to appraisal of
and payment for his or her Dissenting Company Stock under Section 262 of the
Delaware Law, each share of Dissenting Company Stock of such holder shall be
converted into the right to receive the Per Share Stock Consideration in
accordance with the procedures and subject to the conditions, set forth in
Section 1.7 hereof.
Section 1.7. Exchange Procedure. (a) At or prior to the Effective Time,
Mahaska shall deposit, or shall cause to be deposited, with the Exchange Agent,
for the benefit of the holders of certificates formerly representing shares of
Company Common Stock ("Old Certificates"), for exchange in accordance with this
Article I, certificates representing the shares of Mahaska Common Stock ("New
Certificates") and an estimated amount of cash (such cash and New Certificates,
together with any dividends or distributions with a record date occurring after
the Effective Time with respect thereto (without any interest on any such cash,
dividends or distributions), being hereinafter referred to as the "Exchange
Fund") to be paid pursuant to this Article I in exchange for outstanding shares
of Mahaska Common Stock.
(b) As promptly as practicable after the Effective Time, Mahaska, shall send
or cause to be sent to each former holder of record of shares of Company Common
Stock as of immediately prior to the Effective Time transmittal materials for
use in exchanging such stockholder's Old Certificates for the consideration set
forth in this Article I. Mahaska shall cause the New Certificates into which
shares of stockholder's Company Common Stock are converted on the Effective Time
and/or any check in respect of any fractional share interests or dividends or
distribution which such person shall be entitled to receive to be delivered to
such stockholder upon delivery to and receipt by the Exchange Agent of Old
Certificates representing such shares of Company Common Stock (or indemnity
reasonably satisfactory to Mahaska and the Exchange Agent, if any of such
certificates are lost, stolen or destroyed) owned by such stockholder. No
interest will be paid on any such cash paid in lieu of fractional share
interests or in respect of dividends or distributions which any such person
shall be entitled to receive pursuant to this Article I upon such delivery.
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(c) Notwithstanding the foregoing, neither the Exchange Agent nor any party
hereto shall be liable to any former holder of Company Common Stock for any
amount properly delivered to a public official pursuant to applicable abandoned
property, escheat or similar laws.
(d) Until surrendered for exchange in accordance with the provisions of this
Section 1.7 hereof, each certificate theretofore representing shares of Company
Common Stock (other than shares to be cancelled pursuant to Section 1.2(f)
hereof) shall from and after the Effective Time represent for all purposes only
the right to receive shares of Mahaska Common Stock as set forth in this
Agreement. No dividends or other distributions with respect to Mahaska Common
Stock with a record date occurring after the Effective Time shall be paid to the
holder of any unsurrendered Old Certificate representing shares of Company
Common Stock converted in the Merger into the right to receive shares of such
Mahaska Common Stock until the holder thereof shall be entitled to receive New
Certificates in exchange therefor in accordance with the procedures set forth in
this Section 1.7. After becoming so entitled in accordance with this Section
1.7, the record holder thereof also shall be entitled to receive any such
dividends or other distributions, without any interest thereon, which
theretofore had become payable with respect to shares of Mahaska Common Stock
such holder had the right to receive upon surrender of the Old Certificates.
(e) Any portion of the Exchange Fund that remains unclaimed by the
stockholders of the Company for six months after the Effective Time shall be
paid to Mahaska. Any stockholders of the Company who have not theretofore
complied with this Article I shall thereafter look only to Mahaska for payment
of the shares of Mahaska Common Stock, cash in lieu of any fractional shares and
unpaid dividends and distributions on Mahaska Common Stock deliverable in
respect of each share of Company Common Stock such stockholder holds as
determined pursuant to this Agreement, in each case, without any interest
thereon.
Section 1.8. Withholding Rights. Mahaska or the Exchange Agent shall be
entitled to deduct and withhold from the consideration otherwise payable
pursuant to this Agreement to any holder of shares of Company Common Stock such
amounts as Mahaska or the Exchange Agent is required to deduct and withhold with
respect to the making of such payment under the Internal Revenue Code (the
"Code"), or any provision of state, local or foreign tax law. To the extent that
amounts are so withheld by Mahaska 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 shares of Company Common Stock in respect to which such deduction
and withholding was made by Mahaska or the Exchange Agent.
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ARTICLE II
REPRESENTATIONS, WARRANTIES AND AGREEMENTS
OF THE COMPANY
As an inducement to Mahaska to enter into and perform this Agreement, the
Company represents and warrants to, and agrees with, Mahaska as follows:
Section 2.1. Organization of the Company. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, with full corporate power and authority to own its property and
conduct its business and to enter into and perform this Agreement. The Company
is duly authorized to transact business in, and is in good standing under the
laws of, the State of Iowa. The character of the properties owned and leased by
the Company and the nature of the business conducted by it do not require that
the Company be qualified to do business in any other state or jurisdiction,
except where the failure to be so qualified would not have a Material Adverse
Effect upon the Company and the Company Subsidiaries. As used in this Agreement,
"Material Adverse Effect" on a party hereto means any fact, condition, event,
development or occurrence which, individually or when taken together with all
other such facts, conditions, events, developments or occurrences, could
reasonably be expected to have a material adverse effect on the financial
condition, operating results or business of (unless specifically stated
otherwise herein), such party and its subsidiaries, taken as a whole.
Section 2.2. Company Stock. (a) The authorized capital stock of the Company
consists of 2,000,000 shares of Common, $0.01 par value (hereinafter referred to
as the "Company Common Stock"), and 500,000 shares of Preferred Stock, $0.01 par
value of which as of the date hereof (i) 1,098,523 shares of Company Common
Stock are issued and outstanding and no shares of Company Preferred Stock are
issued and outstanding, (ii) 0 shares of Company Common Stock are held in the
Company's treasury, and (iii) 20,950 options to purchase shares of Company
Common Stock are outstanding.
(b) All of the issued and outstanding shares of Company Common Stock are
validly issued, fully paid and non-assessable, were not issued in violation of
the preemptive rights of any person, and were issued in full compliance with all
applicable state and Federal laws.
(c) Except for the 20,950 options outstanding as set forth in Section
2.2(a)(iii), there are no outstanding warrants, options, subscriptions,
contracts, rights or other arrangements or commitments obligating the Company to
issue any additional shares of Company Common Stock or any other capital stock
of the Company, nor are there any securities, debts, obligations or rights
outstanding which are convertible into or exchangeable for Company Common Stock
or any other capital stock of the Company. There are no outstanding contracts,
rights or other arrangements or commitments which would obligate the Company to
purchase or redeem or otherwise acquire any Company Common Stock or any other
equity security.
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Section 2.3. Company Subsidiaries. (a) Other than shares of stock in the
Federal Home Loan Bank of Des Monies and marketable securities (the issuers of
which shall not be deemed Company Subsidiaries), Schedule 2.3(a) attached hereto
and hereby made a part hereof contains a list of each corporation, including
Midwest Federal Savings and Loan Association of Eastern Iowa (the "Bank"),
partnership, joint venture or other entity in which the Company has a direct or
indirect equity ownership (hereinafter each of such corporations, partnerships
and other entities is sometimes referred to individually as a "Company
Subsidiary" and collectively as the "Company Subsidiaries"), a description of
the legal nature of each Company Subsidiary, and the percentage equity ownership
of the Company or any Company Subsidiaries in each Company Subsidiary and the
legal nature of such ownership. Schedule 2.3(a) also contains a description of
the capitalization of each of the Company Subsidiaries (including, without
limitation, a listing of the authorized, issued and outstanding shares of
capital stock of each Company Subsidiary).
(b) Except as disclosed in Schedule 2.3(b) attached hereto and hereby made a
part hereof, all of the capital stock of each Company Subsidiary is owned of
record and beneficially by the Company or another Company Subsidiary.
(c) Each of the Company Subsidiaries which is a financial institution is
duly organized, and validly existing as an Iowa banking corporation or savings
association under the laws of the State of Iowa or, if a national bank, or
federal thrift or savings association, as a national banking, thrift or savings
association under the laws of the United States. Each of the Company
Subsidiaries which is not a financial institution is duly organized, validly
existing and in good standing under the laws of its state of incorporation. All
of the Company Subsidiaries have full corporate power and authority to own or
lease their properties and carry on their businesses as now being conducted, and
each is qualified to do business as a foreign corporation in each state where
the character and location of its properties or the nature of the business
conducted by it requires qualification. All necessary regulatory approvals for
the acquisition and ownership by the Company of the capital stock of each of the
Company Subsidiaries have been received by the Company. Each of the Company
Subsidiaries has all consents, permits, franchises, licenses, concessions,
authorities (including without limitation all easements, rights of way and
similar authorities), authorizations and approvals of Federal, state and local
governmental authorities and other persons and entities required in connection
with the ownership and operation of its properties and the carrying on of its
business as now being conducted, all of which are in full force and effect and
no suspension or cancellation of any of which is threatened, except for those
whose failure to obtain or maintain would not have a Material Adverse Effect on
the Company, the Bank or the Surviving Corporation, other than consents,
authorizations and approvals required relating to the transactions contemplated
by this Agreement.
(d) All shares of the issued and outstanding capital stock of each of the
Company Subsidiaries are validly issued, fully paid and non-assessable, were not
issued in violation of the preemptive rights of any person, and were issued in
full compliance with all applicable state and Federal laws.
(e) There are no outstanding warrants, options, subscriptions, contracts,
rights or other arrangements or commitments obligating any Company Subsidiary to
issue any additional shares of its capital stock, nor are there any securities,
debts, obligations or rights outstanding which are convertible into or
exchangeable for shares of its capital stock. There are not outstanding
contracts, rights or other arrangements or commitments which would obligate any
Company Subsidiary to purchase or redeem or otherwise acquire any shares of its
capital stock or any other security.
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Section 2.4. Corporate Authorization. The execution, delivery and
performance of this Agreement and the related documents have been duly and
validly authorized and approved by the Board of Directors of the Company and,
except as disclosed on Schedule 2.4 and for results and consequences that are
not expected to have a Material Adverse Effect on the Company or the Bank, do
not and will not violate or conflict with the certificate of incorporation or
by-laws of the Company and do not and will not violate or conflict with or
result in any material default, any acceleration of required performance or any
loss of a material benefit under any note, bond, mortgage, indenture, lease,
franchise, license, permit, approval, contract, agreement or other instrument or
document or any order, writ, injunction, decree, judgment, statute, rule or
regulation to which the Company or any Company Subsidiary is a party or subject
or by which the Company or any Company Subsidiary is bound. No consent of any
third party (other than the regulatory approvals referred to in Section 4.1
hereof and the shareholders approval referred to in Section 4.2 hereof) is
necessary to enable the Company to consummate the transactions contemplated by
this Agreement. The requisite vote of the shareholders of the Company to adopt
this Agreement, as required by applicable law, is a vote in favor of such
adoption by the holders of not less than a majority of the outstanding stock of
the Company entitled to vote thereon, voting as a single class.
Section 2.5. Financial Statements Previously Delivered. (a) The Company has
furnished Mahaska with copies of the following financial statements:
(i) Audited consolidated balance sheets of the Company and the Company
Subsidiaries as of December 31, 1995, 1996 and 1997, and the related audited
consolidated statements of income, changes in shareholders' equity and cash
flows for each of the calendars years ended December 31, 1995, 1996 and
1997, together with the notes thereto, accompanied by the unqualified
reports thereon of KPMG Peat Marwick, LLP, certified public accountants;
(ii) An unaudited consolidated balance sheet of the Company and the
Company Subsidiaries as of September 30, 1998, together with a related
consolidated statement of income for the three-month period then ended; and
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(iii) Reports of condition of each of the Company Subsidiaries which is
a financial institution as of December 31, 1995, 1996 and 1997, together
with the related reports of income for the periods then ended, as included
in the thrift financial reports of each of the Company Subsidiaries which is
a financial institution as of said dates filed with any bank regulatory
authority.
(b) Each of the financial statements referred to in clauses (i) and (ii) of
paragraph (a) of this Section has been prepared in accordance with generally
accepted accounting principles and practices consistently applied (except for
the absence of footnotes and year end adjustments in the case of the unaudited
financial statements as of and for the period ended September 30, 1998). Each of
the financial statements referred to in clause (iii) of paragraph (a) of this
Section has been prepared in accordance with the applicable regulations and
standards of the bank regulatory authority with which said financial statement
was filed. Each of the financial statements referred to in paragraph (a) of this
Section is true, correct and complete in all material respects and presents
fairly the financial condition of the Company and the Company Subsidiaries on a
consolidated basis, or, as the case may be, the financial condition of a Company
Subsidiary, as of the date thereof or, as the case may be, the results of
operations (on a consolidated basis, if applicable) for the period covered
thereby.
Section 2.6. Financial Statements to Be Delivered. (a) As soon as
available, the Company will furnish Mahaska with copies of the following
financial statements:
(i) All financial statements of the Company or any Company Subsidiary as of
any date, or for any period ending, after December 31, 1997, which shall be
issued or distributed to shareholders, directors or management of the Company or
any Company Subsidiary prior to the Effective Time; and
(ii) Each thrift financial report of each Company Subsidiary which is a
financial institution filed prior to the Effective Time with any regulatory
authority for any period ending after December 31, 1997.
(b) With respect to the financial statements furnished pursuant to clause
(i) of paragraph (a) of this Section, each of them will have been prepared in
accordance with generally accepted accounting principles and practices
consistently applied (except for the absence of footnotes and year end
adjustments in the case of unaudited financial statements). With respect to the
financial statements contained in the thrift financial reports furnished
pursuant to clause (ii) of paragraph (a) of this Section, each of them will have
been prepared in accordance with the applicable regulations and standards of the
regulatory authority with which said financial statements were filed. With
respect to all financial statements furnished pursuant to paragraph (a) of this
Section, each of them will be true, correct and complete in all material
respects and will fairly present the financial condition of the Company and the
Company Subsidiaries on a consolidated basis, or, as the case may be, the
financial condition of a Company Subsidiary, as of the date thereof or, as the
case may be, the results of operations (on a consolidated basis, if applicable)
for the period covered thereby.
Section 2.7. Documents Other Than Financial Statements Previously Delivered.
The Company has, as part of the disclosure documents and information previously
furnished by the Company to Mahaska (the "Disclosure Statement"), furnished
Mahaska with true, correct and complete copies of the following documents:
(a) The certificate of incorporation and by-laws of the Company;
(b) The certificate of incorporation, articles of incorporation, charter or
articles of association, as the case may be, and by-laws of each Company
Subsidiary;
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(c) All proxy statements, annual reports and other written materials
furnished to the stockholders of the Company and the Company Subsidiaries since
January 1, 1994; and
(d) Each contract, agreement, instrument, lease, license, plan, arrangement
and other document in which the Company or any Company Subsidiary is obligated
to pay in a one year period in excess of Twenty-Five Thousand Dollars
($25,000.00) to which the Company or any Company Subsidiary is a party or
subject and which is described or referred to in the Disclosure Statement.
Section 2.8. Undisclosed Liabilities. All of the obligations or liabilities
(whether accrued, absolute, contingent, unliquidated or otherwise, whether due
or to become due, and regardless of when asserted) arising out of transactions
or events heretofore entered into, or any action or inaction, including taxes
with respect to or based upon transactions or events heretofore occurring, that
are required to be reflected, disclosed or reserved against in audited
consolidated financial statements in accordance with generally accepted
accounting principles ("Liabilities") have, in the case of the Company and the
Company Subsidiaries, been so reflected, disclosed or reserved against in the
Company's audited financial statements as of December 31, 1997 or in the notes
thereto (the "1997 Balance Sheet"), and the Company and the Company Subsidiaries
have no other Liabilities except (a) Liabilities incurred since December 31,
1997 in the ordinary course of business or (b) as disclosed on Schedule 2.8.
Section 2.9. Title to Properties; Leases; Violations; Environmental Matters.
(a) Without limiting any other provision of this Agreement, each of the Company
and the Company Subsidiaries is the owner of good and marketable title to all
real property and good title to all other property and assets, tangible and
intangible, which it claims or otherwise purports to own (including, without
limitation, all of its assets reflected on the 1997 Balance Sheet or purported
to have been acquired by it since the date thereof), free and clear of any
mortgages, liens, pledges, security interests, licenses, charges, restrictions
on transfer or other encumbrances, except for (i) in the case of the Company
Subsidiaries which are financial institutions, pledges and liens given to secure
deposits and other banking liabilities arising in the ordinary course of
business, (ii) liens for current taxes not yet due and payable, (iii)
properties, interests and assets sold or otherwise disposed of after December
31, 1997, in the ordinary course of business, and (iv) as to real estate,
imperfections of title and easements and encumbrances, if any, that do not
materially detract from the value of the respective assets subject thereto or
interfere with the current use thereof and that do not materially impair the
operations of the Company or any of the Company Subsidiaries as currently
conducted. Except as disclosed on Schedule 2.9 hereto, there is no property or
assets, tangible or intangible, real, personal or mixed (for which the Company
is obligated to pay in excess of five thousand dollars per year for each such
personal or intangible property or asset or in excess of $25,000 per year for
each such real property), which are used by the Company or any Company
Subsidiaries in the conduct of their business which are not owned by the Company
or the Company Subsidiaries, free and clear of any mortgages, liens, pledges,
security interests, licenses, charges, restrictions on transfer or other
encumbrances.
(b) Each lease under which the Company or any Company Subsidiary is the
lessee of any real or personal property is in full force and effect, and the
lessee under each such lease has been in peaceable possession of the property
covered thereby since the commencement of the original term of such lease. No
waiver, indulgence or postponement of the lessee's obligations under any such
lease has been granted by the lessor thereunder, or of such lessor's obligations
thereunder by such lessee. Neither the lessee nor, to the best of the Company's
knowledge and belief, the lessor under each such lease has violated in any
material respect any of the terms or conditions thereof, and all of the
covenants to be performed by the lessee and, to the best of the Company's
knowledge and belief, the lessor under each such lease have been fully performed
in all material respects.
-11-
(c) During the last five years, neither the Company nor any Company
Subsidiary has received notice of any violation of any applicable zoning
regulation, ordinance or other law, order, regulation or requirement relating to
its operations or property; to the knowledge of the Company, no such violation
presently exists; and, to the knowledge of the Company, all buildings and other
structures owned, leased, occupied, operated or used by the Company and the
Company Subsidiaries conform to all applicable ordinances, codes and
regulations.
(d) Except as disclosed on Schedule 2.9(d), no Hazardous Materials (as such
term is hereinafter defined) have been located in or on any of the real property
owned or used by the Company or any Company Subsidiaries (hereinafter referred
to collectively as the "Company Real Property") or have been released into the
environment, or discharged, emitted, placed or disposed of at, on, under or by
the Company Real Property, and the Company Real Property and the operations of
the Company and the Company Subsidiaries thereon have complied in all respects
with any applicable Environmental Laws (as such term is hereinafter defined),
and any applicable law, regulation or requirement relating to environmental and
occupational health and safety matters and Hazardous Materials. None of the
Company Real Property is a facility at which there has been a release of
Hazardous Materials that exceeds or violates any applicable or relevant and
appropriate Environmental Laws. Except as disclosed in the Disclosure Statement,
there exist no underground storage tanks, landfills, or land disposal or dumps
on the Company Real Property. None of the Company Real Property is discharging
oil or poses a substantial threat of a discharge of oil, within the meaning of
the Oil Pollution Act of 1990. As used herein, the term "Hazardous Materials"
shall mean any substance or material which is regulated by any local
governmental authority, the State of Iowa or the United States Government, as an
environmental pollutant or dangerous to public health, public welfare or the
natural environment (including, without limitation, protection of non-human
forms of life, land, surface water, groundwater and air) including, but not
limited to, any material or substance which is (i) defined as "toxic,"
"polluting," "hazardous waste," "hazardous material," "hazardous substance,"
extremely hazardous waste" or "restricted hazardous waste" under any provision
of local, State of Iowa or Federal law; (ii) petroleum; (iii) asbestos; (iv)
polychlorinated biphenyls; (v) radioactive material; (vi) designated as a
"hazardous substance" pursuant to the Clean Water Act, 33 U.S.C. ss.1321; (vii)
defined or designated as a "hazardous waste" pursuant to the Resource
Conservation and Recovery Act, 42 U.S.C. ss.6901 et seq. (42 U.S.C. ss.6903);
(viii) defined or designated as a "hazardous substance" pursuant to the
Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C.
ss.9601 et seq. (42 U.S.C. ss.9601) (hereinafter referred to as "CERCLA"); (ix)
defined or designated as a chemical substance under the Toxic Substances Control
Act, 15 U.S.C. ss.2601 et seq.; (x) defined or designated as a pesticide under
the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. ss.135 et seq.;
or (xi) crude oil or any fraction thereof or oil. As used herein, the term
"Environmental Laws" shall mean all statutes specifically described in the
foregoing sentence and all Federal, state and local environmental health and
safety statutes, ordinances, codes, rules, regulations, orders, decrees and
guidance documents regulating, relating to or imposing liability or standards
concerning or in connection with Hazardous Materials.
(e) Except as disclosed on the Schedule 2.9(e) hereto no real property
occupied, owned, operated, leased or used by the Company or any Company
Subsidiary, or in which any Company Subsidiary holds a beneficial interest,
whether as owner, mortgagee or otherwise, including (without limitation) as a
holder of a collateral assignment of a beneficial interest in a land trust,
constitutes a hazardous substance disposal site listed pursuant to Section
455B.426 of the Iowa Code, the use or transfer of which is restricted under
Section 455B.430 of the Iowa Code.
-12-
(f) Prior to the Effective Time, the Company will furnish to Mahaska, at the
sole cost and expense of Mahaska a written report, addressed to Mahaska, of an
environmental assessment of four (4) identified parcels of real property
occupied and owned by the Company or the Bank which Mahaska may designate,
prepared by an engineering firm or other qualified expert satisfactory to
Mahaska in a manner consistent with generally accepted engineering practices and
procedures and dated as of a date not more than 60 days prior to the day of the
Effective Time (hereinafter referred to as the "Environmental Assessments").
Each Environmental Assessment shall demonstrate that (i) appropriate inquiry was
made into the previous ownership and uses of such parcel, consistent with good
commercial and customary practice in an effort to minimize liability, which
takes into account the "innocent landowner" provision of CERCLA, and (ii) the
parcels it covers and all improvements thereon do not contain asbestos, urea
formaldehyde foam insulation, transformers or other equipment which contain
dielectric fluid containing levels of polychlorinated biphenyls in excess of 50
parts per million, or any other chemical, material or substance, exposure to
which is prohibited, limited or regulated by any governmental authority which,
in Mahaska's reasonable judgement, requires remediation and/or cleanup that may
have a total cost in excess of two hundred fifty thousand dollars ($250,000).
(g) With respect to the four (4) parcels identified in Section 2.09(f)
hereinabove, (a) except as disclosed on Schedule 2.9(g) hereto, such parcels and
all improvements thereon are not now being used, and, to the knowledge of the
Company, have never been used, for any activity involving, directly or
indirectly, the use, generation, treatment, storage or disposal of any Hazardous
Substances, (b) such parcels and the improvements, if any, thereon, are not,
and, to the knowledge of the Company, have not been, the subject of any past,
existing or threatened investigation, proceeding or inquiry concerning
environmental matters, (c) except as disclosed on Schedule 2.9(g) hereto, no
notice or submission concerning environmental matters has been during the period
owned or occupied by the Company or a Company Subsidiary (limited to the past
twenty (20) years), or to the knowledge of the Company, should be, given with
respect to such parcels or any improvement thereon, and (d) neither the Company
nor any Company Subsidiary is subject to, or covered by, the requirements of
Title III of the Superfund Amendments and Reauthorization Act of 1986, as
amended.
Section 2.10. Governmental Regulation. (a) Each of the Company and the
Company Subsidiaries holds all consents, licenses, certificates, permits,
authorizations, approvals, franchises and rights of Federal, state, local and
other public authorities and other persons and entities required in connection
with the ownership and operation of its properties and the carrying on of its
business as now being conducted, all of which are now in full force and effect,
and between the date hereof and the Effective Time, the Company will use its
best efforts to, and will cause each Company Subsidiary to use its best efforts
to, maintain all such consents, licenses, certificates, permits, authorizations,
approvals, franchises and rights in full force and effect. The Company shall
promptly notify Mahaska of the loss or threat of loss of any such consent,
license, certificate, permit, authorization, approval, franchise or right.
Neither the Company nor any Company Subsidiary which is a financial institution
is a party or subject to any agreement with, or directive or order issued by,
the Board of Governors of the Federal Reserve System (the "FRB"), the Federal
Deposit Insurance Corporation (the "FDIC"), the Comptroller of the Currency, the
Office of Thrift Supervision (the "OTS"), the Superintendent of Banking of the
State of Iowa Division of Banking (the "Superintendent") or any other regulatory
authority, which imposes any restrictions or requirements not applicable
generally to savings and loan holding companies (in the case of the Company) or
financial institutions (in the case of the Company Subsidiaries which are
financial institutions), with respect to the conduct of its business. Each of
the Company and the Company Subsidiaries has conducted its business so as to
comply in all material respects with all applicable Federal, state and local
statutes, regulations, ordinances and rules, including (without limitation)
applicable banking laws, Federal and state securities laws, and laws and
regulations concerning minimum capital requirements, truth-in-lending, usury,
fair credit reporting, fair lending and equal credit opportunity, currency
reporting, community reinvestment, Internal Revenue Service information
reporting and back-up withholding, consumer protection, occupational safety,
employee benefit plans, environmental matters, fair employment practices and
fair labor standards. Except as disclosed on Schedule 2.10 hereto, since
December 31, 1994, neither the Company nor any of the Company Subsidiaries has
received from any governmental or regulatory authority any written requirement,
recommendation or suggestion of a material nature concerning their capital
structure, loan policies or portfolio, or other banking or business practices or
procedures that has not been resolved to the reasonable satisfaction of such
regulatory authority.
-13-
(b) The Company is duly registered as a savings and loan holding company
subject to oversight by the OTS. The Company is not a bank holding company
subject to the "Bank Holding Company Act of 1956".
(c) The Company and each Company Subsidiary which is a financial institution
are in full compliance with applicable minimum capital requirements prescribed
by the OTS and any other regulatory authority having regulatory jurisdiction
over the Company or such Company Subsidiary, as the case may be, and each such
Company Subsidiary is "adequately capitalized" or "well capitalized" within the
meanings of such terms as used in Section 38(b) of the Federal Deposit Insurance
Act, as amended (the "FDI Act"), and the applicable regulations promulgated
thereunder.
(d) Except as set forth on Schedule 2.10(d), the deposits of each Company
Subsidiary which is a financial institution are insured by the FDIC in
accordance with the FDI Act and the rules and regulations of the FDIC adopted
thereunder.
(e) As part of the Disclosure Statement, the Company has previously
furnished to Mahaska copies of (i) the Company's Annual Reports on Form 10-KSB
and Quarterly Reports on Form 10-QSB since December 31, 1994, in each case as
filed with the Securities and Exchange Commission (hereinafter referred to as
the "SEC"), (ii) each proxy statement relating to any meeting of the Company's
shareholders (whether annual or special) which has been held since December 31,
1994, (iii) the annual reports to the Company's shareholders and quarterly
reports to the Company's shareholders since December 31, 1994, (iv) the
Company's annual reports on Form Hb-11 and quarterly updates, if any, since
December 31, 1994, each as filed with the OTS, (v) each thrift financial report
of condition and income filed by the Company and each Company Subsidiary with
any supervisory authority since December 31, 1994, (vi) all other reports or
registration statements filed by the Company or any Company Subsidiary with the
SEC or the OTS since December 31, 1994, and (vii) all other documents
incorporated by reference in whole or in part in the foregoing (the documents
referred to in (i) through (vii), including all amendments and supplements
thereto and all financial statements and notes contained therein, are
hereinafter collectively referred to as the "Reports"). The Reports, as of the
respective times of filing thereof with the SEC, the OTS or any other regulatory
-14-
authority, as the case may be, complied as to form and substance with all
material requirements of the laws, rules and regulations applicable thereto and
did not include any untrue or misleading statement of or with respect to a
material fact or omit to state any material fact necessary in order to make the
statements made therein, in the light of the circumstances under which they were
made, not misleading. Since December 31, 1994, the Company and each of the
Company Subsidiaries have filed all reports and registration statements required
to be filed by each of them with the SEC, the OTS or any other regulatory
authority in accordance with all material requirements of the laws, rules and
regulations applicable thereto except where the failure to so file such reports
and registration statements will not have a material effect on the Company, the
Surviving Corporation or any Company Subsidiary. From and after the date hereof
until the Effective Time, concurrently with the filing thereof with any
regulatory agency or the mailing thereof to the shareholders of the Company, as
the case may be, the Company will deliver to Mahaska copies of any of the
Reports not previously filed or mailed as aforesaid prior to the date hereof.
(f) The Company Common Stock is duly registered under Section 12(g) of the
Securities Exchange Act of 1934, as amended (hereinafter referred to as the
"Exchange Act"). The Company has previously furnished, or will promptly furnish
upon receipt, to Mahaska copies of any Statements on Schedule 13D, 13G, 14B or
14D-1 and Forms 3, 4 and 5 under the Exchange Act and any amendments to any such
statements or forms received by the Company or known by it to have been filed
with the SEC with respect to the ownership of, or solicitation of proxies in
connection with, any of the Company Common Stock.
Section 2.11. Litigation. Except as disclosed on Schedule 2.11 hereto,
there are no legal, arbitration, quasi-judicial or administrative proceedings of
any kind or nature pending or, to the best of the Company's knowledge and
belief, threatened, affecting or involving the Company or any of the Company
Subsidiaries or any of their respective properties or any of the Company Stock
or the capital stock of any of the Company Subsidiaries, which may have a
Material Adverse Effect on the Company, the Surviving Corporation or the Bank,
and there has been no material default on the part of the Company or any of the
Company Subsidiaries with respect to any judgment, order, writ, injunction,
decree, award, rule or regulation issued in any legal, quasi-judicial or
administrative proceeding. Schedule 2.11 hereto sets forth a description of all
material litigation, arbitration or quasi-judicial or administrative proceedings
to which the Company or any Company Subsidiary was a party at any time since
December 31, 1994.
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Section 2.12. Taxes. Each of the Company and the Company Subsidiaries has
timely filed, either separately or as a member of a consolidated group of
corporations, with appropriate Federal, state, county and local governmental
agencies, all tax returns and reports required to be filed, and each such return
and report is complete and accurate in all material respects. Each of the
Company and the Company Subsidiaries has paid, or has set up an adequate reserve
for the payment of, all taxes and assessments of every kind and description
whatsoever (including, without limitation, interest and penalties) shown as
owing on such returns and reports or otherwise due and owing by it. Proper and
accurate amounts have been withheld for the payment of taxes by the Company and
the Company Subsidiaries from the compensation payable to their respective
employees for all periods ending prior to the date hereof in full compliance
with the tax withholding provisions of all laws applicable to the Company and
the Company Subsidiaries. There are included in the 1997 Balance Sheet adequate
reserves in accordance with GAAP, for the payment of all Federal, state, county
and local taxes of the Company and the Company Subsidiaries, including (without
limitation) interest and penalties (if any), whether or not disputed, which were
accrued but unpaid through the date thereof. On the date of this Agreement and
at all times during the period between such date and the Effective Time, there
are, and will be, established on the books of the Company and the Company
Subsidiaries adequate reserves in accordance with generally accepted accounting
principles, for the payment of all such Federal, state, county and local taxes,
including interest and penalties (if any), whether or not disputed, which are
from time to time accrued but unpaid. Neither the Company nor any of the Company
Subsidiaries has executed or filed with the Internal Revenue Service or any
other governmental agency any agreement extending or waiving the period for
assessment or collection of any tax, nor is the Company or any of the Company
Subsidiaries a party to any action or proceeding by any governmental agency for
assessment or collection of taxes, nor is there any claim for assessment or
collection of taxes pending against the Company or any of the Company
Subsidiaries. Neither the Company nor any of the Company Subsidiaries has during
the past ten years received any notice of deficiency, proposed deficiency or
assessment from the Internal Revenue Service or any other governmental agency
with respect to any Federal, state, county or local taxes. No Federal, state,
county or local income tax return of the Company or any of the Company
Subsidiaries is currently the subject of any audit by the Internal Revenue
Service or any other governmental agency; no material deficiencies were asserted
as a result of any past examinations of income tax returns which have not been
resolved and fully paid. Except as set forth on Schedule 2.12 hereto, neither
the Company nor any of the Company Subsidiaries is a party to any agreement
providing for allocation or sharing of any taxes.
Section 2.13. Contracts. (a) Except as disclosed on Schedule 2.13 hereto,
neither the Company nor any of the Company Subsidiaries is a party to, subject
to or bound by any (i) employment contract (including, without limitation, any
collective bargaining contract or union agreement) which is not terminable by it
without penalty or other liability upon 30 or fewer days' notice; (ii) employee
stock option, bonus, deferred compensation, savings, profit sharing, severance
pay, pension, retirement or group insurance plan or arrangement or other similar
agreement, plan or arrangement; (iii) lease or license which requires an annual
payment by the Company or any Company Subsidiary in excess of Twenty-Five
-16-
Thousand Dollars ($25,000) with respect to any property, real or personal,
whether as landlord, tenant, licensor or licensee; (iv) agreement, contract,
instrument or indenture relating to the borrowing of money; (v) guaranty of any
obligation for borrowed money or otherwise, excluding (in the case of the
Company Subsidiaries which are financial institutions) endorsements made for
collection and guarantees made in the ordinary course of business; (vi)
management or consulting agreement or other similar agreement or arrangement;
(vii) agreement with any present or former officer, director or shareholder of
the Company or any Company Subsidiary; or (viii) other contract, agreement or
commitment, other than this Agreement, which is material to its business,
operations, property, prospects or assets or to its condition, financial or
otherwise, or which involves payments by or to it of more than a total of
$50,000.00 in any one-year period, except (in the case of the Company
Subsidiaries which are financial institutions) for deposit accounts and loan
agreements between such Company Subsidiary and third parties involving
commitments on the part of such Company Subsidiary to lend money in customary
amounts in the ordinary course of such Company Subsidiary's business and letters
of credit in customary amounts issued by a Company Subsidiary which is a
financial institution to third parties in the ordinary course of such Company
Subsidiary's business. Between the date hereof and the Effective Time, except in
the ordinary course of business, without the prior written consent of Mahaska,
the Company will not, and will cause the Company Subsidiaries not to, enter into
or amend any contract, agreement, commitment, plan, arrangement or other
instrument of any of the types referred to in clauses (i) through (viii) of this
paragraph.
(b) Each of the Company and the Company Subsidiaries has performed all
material obligations heretofore required to be performed by it and is not in
material default under, and, to the best of the Company's knowledge and belief,
no event has occurred which, with the lapse of time or action by a third party
(other than the consummation of the transactions contemplated by this
Agreement), could result in a material default by the Company or any Company
Subsidiary under, any outstanding indenture, mortgage, deed of trust, contract,
agreement, lease, license, instrument or other arrangement to which it is a
party or subject or by which it is bound or under any provision of its
certificate of incorporation, articles of incorporation, charter or articles of
association, as the case may be, or by-laws.
Section 2.14. Insurance. Each of the Company and the Company Subsidiaries
has in effect the insurance coverage described on Schedule 2.14 hereto, which
description contains the amount and types of coverage and the risks insured, and
such coverage is with reputable insurers, insures against all risks normally
insured against by thrift holding companies and thrift institutions, and is
adequate (in amounts, types and risks insured) for the business conducted by it.
All of the insurance policies referred to on Schedule 2.14 hereto are in full
force and effect, neither the Company nor any of the Company Subsidiaries is in
material default under any of such policies, and all material claims under such
policies have been filed in due and timely fashion, except where the failure to
file any such claim in a due and timely fashion would not have a material
adverse effect on such claim.
Section 2.15. Minute Books. The minute books of the Company and the Company
Subsidiaries contain complete and accurate records, in all material respects, of
all meetings and other corporate actions of their respective stockholders and
directors.
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Section 2.16. Employee Benefit Plan Matters. (a) Except as set forth on
Schedule 2.16 hereto, neither the Company nor any Company Subsidiary is a party
to or participates in or has any material liability or contingent liability with
respect to:
(i) Any "employee welfare benefit plan" or "employee pension benefit
plan" (as those terms are defined in Sections 3(1) and 3(2) of the Employee
Retirement Income Security Act of 1974, as amended (hereinafter referred to
as "ERISA")), including any "multiemployer plan" as defined in Section 3(37)
of ERISA); or
(ii) Any retirement or deferred compensation plan, incentive
compensation plan, stock option plan, stock plan, stock appreciation rights
plan, phantom stock plan, unemployment compensation plan, vacation pay,
severance pay, bonus or benefit arrangement, insurance or hospitalization
program or any other fringe benefit arrangements (hereinafter referred to
collectively as "fringe benefit arrangements") for any employee, officer,
director, consultant or agent, whether pursuant to contract, arrangement,
custom or informal understanding, which does not constitute an "employee
benefit plan" (as defined in Section 3(3) of ERISA).
(b) A true and correct copy of each of the plans, arrangements and
agreements listed on Schedule 2.16(b) hereto, and all contracts relating
thereto, or to the funding thereof, including, without limitation, all trust
agreements, insurance contracts, investment management agreements, subscription
and participation agreements and record keeping agreements, each as in effect on
the date hereof, has been delivered to Mahaska by the Company as part of the
Disclosure Statement. In the case of any plan, arrangement or agreement which is
not in written form, the Company has provided Mahaska with an accurate written
description of such plan, arrangement or agreement as in effect on the date
hereof. A true and correct copy of the most recent annual report, actuarial
report, summary plan description and Internal Revenue Service determination
letter with respect to each such plan or arrangement, to the extent applicable,
and a current schedule of assets (and the fair market value thereof assuming
liquidation of any asset which is not readily tradable) held with respect to any
funded plan arrangement or agreement has been provided to Mahaska by the
Company, and there have been no material adverse changes in the financial
condition of the respective plans from that stated in the annual reports and
actuarial reports supplied.
(c) As to all plans, arrangements and agreements listed on Schedule 2.16(b)
hereto:
(i) All employee benefit plans and fringe benefit arrangements comply
with, and have been administered in form and in operation, in all material
respects, in compliance with, all requirements of law and regulation
applicable thereto, except as set forth on Schedule 2.16(b) hereto, and
neither the Company nor any Company Subsidiary has received any notice from
any governmental agency questioning or challenging such compliance.
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(ii) All employee pension benefit plans comply in form and in operation
with all applicable requirements of Sections 401(a) and 501(a) of the Code,
except where such non-compliance would not result in material liability to
such plans, the Company, the Surviving Corporation or any Company
Subsidiary; there have been no amendments to such plans which are not the
subject of a determination letter issued with respect thereto by the
Internal Revenue Service and which would adversely affect the tax qualified
status of any such plan; and no event has occurred which will or could give
rise to disqualification of any such plan under such Sections or to a
material tax liability under Section 511 of the Code.
(iii) Except as set forth on Schedule 2.16(c)(iii) hereto, none of the
assets of any employee benefit plan are invested in employer securities or
employer real property and no such plan has borrowed any sum which has not
been repaid in full.
(iv) There have been no "prohibited transactions" (as described in
Section 406 of ERISA or Section 4975 of the Code) with respect to any
employee benefit plan maintained by either the Company or any Company
Subsidiary and for which the Company, the Surviving Corporation or any
Company Subsidiary could be liable and neither the Company nor any Company
Subsidiary has engaged in any prohibited transaction with respect to any
employee benefit plan maintained by the Company or any Company Subsidiary.
(v) As to any employee pension benefit plan which is subject to Title IV
of ERISA, there have been no "reportable events" for which reporting is not
waived (as described in Section 4043 of ERISA), and no steps have been taken
to terminate any such plan.
(vi) There have been no acts or omissions by the Company or any Company
Subsidiary which have given rise to or may give rise to any material fines,
penalties, taxes or related charges under Sections 502(c), 502(i) or 4071 of
ERISA or Chapter 43 of the Code, for which the Company, the Surviving
Corporation or any Company Subsidiary may be liable.
(vii) None of the payments contemplated by such plans, arrangements and
agreements would, in the aggregate, constitute excess parachute payments as
defined in Section 280G of the Code.
(viii) There are no actions, suits or claims (other than routine claims
for benefits) pending or, to the best of the Company's knowledge and belief,
threatened involving such plans or the assets of such plans, and, to the
best of the Company's knowledge and belief, no facts exist which could give
rise to any such actions, suits or claims (other than routine claims for
benefits).
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(ix) All group health plans of the Company and the Company Subsidiaries
(including any plans of current and former affiliates of the Company or any
Company Subsidiary which must be taken into account under Section 4980B of
the Code or Section 601 of ERISA) have been operated in material compliance
with the group health plan continuation coverage requirements of Section
4980B of the Code and Section 601 of ERISA to the extent such requirements
are applicable.
(x) Consistent with generally accepted accounting principles and the
accounting practices and procedures of the Company and the Company
Subsidiaries, and without limiting any other provision of this Agreement,
adequate liabilities for the unfunded present value of all obligations under
such plans, arrangements and agreements, which have been actuarially
determined, are reflected in the 1997 Balance Sheet and will be reflected on
the books of the Company and the Company Subsidiaries at all times between
the date hereof and the Effective Time.
Section 2.17. Powers of Attorney. No power of attorney or similar
authorization given by the Company or any of the Company Subsidiaries is
currently outstanding.
Section 2.18. Conduct of Business Since December 31, 1997. Since December
31, 1997, to the date hereof, except as disclosed on Schedule 2.18 hereto,
neither the Company nor any Company Subsidiary has: (a) experienced any change
in financial condition, assets, liabilities or business, except for changes in
the ordinary course of business which, taken as a whole, have not been
materially adverse; (b) except (in the case of the Company) as contemplated by
this Agreement, conducted its business or entered into any transaction otherwise
than in the ordinary course of business, or incurred or become subject to any
liabilities or obligations except current liabilities routinely incurred in the
ordinary course of business in customary amounts (indebtedness, other than
deposits and FHLB advances accepted by Company Subsidiaries which are banks or
savings and loans in the ordinary course of their business, maturing more than
one year after its creation is not for purposes of this Agreement considered as
being in the "ordinary course"); (c) sold or otherwise disposed of any of its
investment securities; (d) mortgaged, pledged, or subjected to lien, charge or
other encumbrance any of its assets, or sold or transferred any of such assets
(other than its investment securities), except in the ordinary course of
business; (e) other than pursuant to the exercise of options, issued, agreed to
issue or sold any shares of its capital stock (whether authorized and unissued
or held in the treasury) or debt obligations (other than deposits accepted by a
Company Subsidiary which is a financial institution in the ordinary course of
its business); (f) granted any options, warrants or other rights for the
purchase or sale of its capital stock; (g) directly or indirectly purchased,
redeemed or otherwise acquired or agreed to purchase, redeem or otherwise
acquire any shares of its capital stock; (h) suffered the filing, or became
aware of any basis for the institution of, any action, suit, proceeding or
governmental investigation, which might have a Material Adverse Effect on it or
the Surviving Corporation; (i) declared, agreed to declare, set apart for
payment or paid any dividend or made any other distribution in respect of any
shares of its capital stock, other than quarterly cash dividends; or (j) except
(in the case of the Company) as contemplated by this Agreement, entered into any
other material transaction other than in the ordinary course of business.
Section 2.19. Conduct of Business Pending Merger. From and after the date
hereof and until the Effective Time, except with the prior written consent of
Mahaska, each of the Company and the Company Subsidiaries will: (a) maintain its
property and assets in their present state of repair, order and condition,
reasonable wear and tear and damage by fire or other casualty fully covered by
insurance excepted; (b) maintain its books, accounts and records in accordance
with generally accepted accounting principles and practices applied on a basis
consistent with the audited financial statements of the Company and the Company
Subsidiaries referred to in Section 2.5(a)(i) hereof; (c) use best efforts to
comply with all laws applicable to the conduct of its business; (d) conduct its
business only in the usual, regular and ordinary course and in substantially the
same manner as heretofore conducted and in all cases consistent with prudent
banking practices, and not make any purchase or sale, except in a manner
consistent with prior practice; (e) make no change in its certificate of
incorporation, articles of incorporation, charter or articles of association, as
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the case may be, or by-laws; (f) use their best efforts to maintain and keep in
full force and effect all fire and other insurance on property and assets, all
liability insurance, and all bonds on personnel, presently carried by it and
immediately provide written notice to Mahaska of a lapse thereof; (g) not buy,
acquire, sell or otherwise dispose of any investment securities in any one
transaction in excess of $2,000,000 or transactions in the aggregate of
$5,000,000 in any one calendar month; (h) not sell, mortgage, subject to lien,
pledge or encumber or otherwise dispose of any of its property and assets
otherwise than in the ordinary course of business; (i) not redeem or otherwise
acquire or agree to redeem or otherwise acquire any shares of its capital stock;
(j) make no change in the number of shares of its capital stock issued and
outstanding (other than pursuant to the exercise of outstanding options), and
grant no option, warrant or similar right relating to any of its capital stock;
(k) use its best efforts to preserve its business organization intact, to keep
available the services of its present officers and employees and to preserve the
goodwill of its customers and others having business relations with it; (l) not
enter into any employment contract which is not terminable without penalty or
other liability upon 30 or fewer days' notice, provided however, existing
employment agreements may be renewed for up to a one year period so long as the
aggregate term thereunder does not exceed three (3) years; (m) not declare or
pay any dividend nor make any other distribution in respect of any shares of its
capital stock, except customary quarterly dividends not to exceed ten (10(cent))
per share; (n) not make any borrowings, except in the ordinary course of
business (indebtedness, other than deposits and FHLB advances accepted by a
Company Subsidiary which is a financial institution in the ordinary course of
its business, maturing more than one year after its creation is not for purposes
of this Agreement considered as being in the "ordinary course"); (o) not
purchase or invest in securities or obligations having a maturity of more than
five (5) years from the date of purchase; (p) not increase the hourly rates of
pay of its employees or increase the fixed compensation payable to any of its
officers or employees, except for such increases which are consistent with past
salary review practices or as required by law; (q) not pay any bonus or
commission, except in accordance with past practices; (r) except as otherwise
contemplated by this Agreement, not establish or amend any "employee welfare
benefit plan," "employee pension benefit plan," or "fringe benefit
arrangements," referred to in Section 2.16 hereof, or any other plan or
arrangement of a similar nature; (s) not extend credit or make advances to any
customer of a Company Subsidiary which is a financial institution who is listed
on such Company Subsidiary's problem or watch list or who has any outstanding
loan, advance or other credit which is in default of payment of principal or
interest or otherwise in material default, has been placed on non-accrual status
or has been classified by such Company Subsidiary's examiners (regulatory or
internal) as among "Other Loans Specifically Mentioned," or as "Substandard,"
"Doubtful" or "Loss," without Mahaska's prior written consent; (t) not extend
credit or make advances in excess of $250,000 to new or existing customers; (u)
not make any tax election or take any other action (including, but not limited
to, change in depreciation methods, estimated payments, change in tax year,
method of accounting, etc.) which could affect the Federal, state, county or
local tax liability of the Company or any Company Subsidiary, without Mahaska's
prior written consent; (v) not enter into any other material transaction other
than in the ordinary course of business; and (w) not voluntarily and knowingly
take any action in anticipation of the Merger which may have a Material Adverse
Effect on the Company, the Surviving Corporation or the Bank.
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Section 2.20. Oral Commitments. Except as disclosed on Schedule 2.20 hereto,
the records of the Company and the Company Subsidiaries contain accurate copies
of all contracts, commitments or arrangements of a material nature and not
reduced to writing, in which the Company or any Company Subsidiary has agreed:
(a) to loan money, to extend credit, or to make other financial accommodations,
to or for the benefit of another party; (b) to waive, release, modify, extend or
defer the obligations, or terms thereof, of any other party to repay
indebtedness owing to the Company or a Company Subsidiary; (c) to release,
relinquish or discharge any guarantor, surety, or other party liable on any
indebtedness owing to the Company or a Company Subsidiary; or (d) to release or
surrender, in whole or in part, any collateral or rights securing the obligation
of any party primarily or secondarily liable for repayment of indebtedness to
the Company or a Company Subsidiary.
Section 2.21. Loans. (a) The allowance for loan losses reflected on the 1997
Balance Sheet was, and such allowance reflected on each consolidated balance
sheet of the Company and the Company Subsidiaries as of any date subsequent to
the date hereof, which is required to be furnished by the Company to Mahaska
pursuant to Section 2.6(a)(i) hereof will in the reasonable opinion of
management of the Company be, in each case as of the date thereof, adequate in
accordance with generally accepted accounting principles to provide for losses
relating to or inherent in the loan and lease portfolios (including accrued
interest receivables) of the Company and the Company Subsidiaries and other
extensions of credit (including letters of credit and commitments to make loans
or extend credit) by the Company and the Company Subsidiaries.
(b) As of the date hereof, the aggregate amount of all Non-Performing and
Materially Impaired Assets (as hereinafter defined) on the books of the Company
and the Company Subsidiaries does not exceed 2.0% of the gross amount of all
loans on the books of the Company and the Company Subsidiaries. "Nonperforming
and Materially Impaired Assets" shall mean (i) loans, leases and other
extensions of credit which are accounted for on a nonaccrual basis, (ii) assets
constituting real estate acquired through foreclosure, including in-substance
foreclosed real estate, (iii) loans which have been restructured and are
required to be reported in accordance with OTS regulations and (iv) loans and
leases (A) that are 90 days or more past due in payment of principal or
interest, (B) with respect to which a reasonable doubt exists as to the timely
collectibility thereof, (C) the interest rate terms of which have been reduced
to below market rates by agreement subsequent to the agreement under which such
loans or leases were originally created, (D) that are subject to a material
breach or default by any obligor thereon, or (E) as to which any obligor thereon
is subject to a pending bankruptcy, reorganization or similar proceeding.
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(c) Except as disclosed on Schedule 2.21(c) hereto, (i) each outstanding
loan, lease or other extension of credit of the Company or any of the Company
Subsidiaries is a legal, valid and binding obligation, is in full force and
effect and is enforceable in accordance with its terms except as may be limited
by bankruptcy, insolvency, moratorium, reorganization or similar laws affecting
the rights of creditors generally or equitable principles limiting the right to
obtain specific performance or other similar relief; (ii) each of the Company
and the Company Subsidiaries has duly performed in all material respects all of
its obligations thereunder to the extent that such obligations to perform have
accrued; (iii) all documents and agreements necessary for the Company or any of
the Company Subsidiaries that is a party thereto to enforce such loan, lease or
other extension of credit are in existence; (iv) to the knowledge of the Company
no claims, counterclaims, set-off rights or other rights exist, nor do the
grounds for any such claim, counterclaim, set-off right or other right exist,
with respect to any such loans, leases or other extensions of credit which could
impair the collectibility thereof; and (v) each such loan, lease and extension
of credit has been, in all material respects, originated and serviced in
accordance with the Company's or any Company Subsidiary's then applicable
underwriting guidelines, the terms of the relevant credit documents and
agreements and applicable laws and regulations.
(d) Schedule 2.21(d) hereto lists all loan commitments exceeding $250,000 of
the Company and the Company Subsidiaries outstanding as of the date hereof.
Except as set forth on Schedule 2.21(d) hereto, as of the date hereof, (i) there
are no loans, leases, other extensions of credit or commitments to extend credit
of the Company or any of the Company Subsidiaries that have been or, to the best
of the Company's knowledge, should have been classified by the Company and the
Company Subsidiaries as "Other Assets Especially Mentioned," "Substandard,"
"Doubtful," "Loss" or any comparable classification and (ii) there are no loans
due to the Company or any of the Company Subsidiaries as to which any payment of
principal, interest or any other amount is 30 days or more past due.
Section 2.22. Derivative Transactions. Except as disclosed on Schedule 2.22
hereto, neither the Company nor any of the Company Subsidiaries has during the
past three (3) years, is or shall engage in transactions in or involving
forwards, futures, options on futures, swaps or other derivative instruments. As
of the date hereof, none of the parties to any contract or agreement entered
into by the Company or any Company Subsidiary with respect to any such
instrument is in default with respect to such contract or agreement, and no such
contract or agreement, were it to be a loan held by the Company or any of the
Company Subsidiaries, would be classified as "Other Assets Especially
Mentioned," "Substandard," "Doubtful," "Loss," or any comparable classification.
The financial position of the Company and the Company Subsidiaries on a
consolidated basis under or with respect to each such instrument has been
reflected in the books and records of the Company and the Company Subsidiaries
in accordance with generally accepted accounting principles consistently
applied, and except as described on Schedule 2.22 hereto, there is no open
exposure of the Company or any of the Company's Subsidiaries with respect to any
such instrument (or with respect to multiple instruments with respect to any
single party).
Section 2.23. Fiduciary Responsibilites. Schedule 2.23 hereto identifies
each of the Company Subsidiaries that is performing, or has at any time
performed any services as trustee, executor, administrator, registrar, guardian,
custodian, escrow agent, receiver or other fiduciary and the nature of any such
services. All such services have been performed by such Company Subsidiaries in
a manner which complies in all material respects with all applicable laws,
regulations, orders, agreements, wills, instruments and common law standards.
Section 2.24 No Broker's or Finder's Fee. Except for Charles Webb & Company
as disclosed on Schedule 2.24 hereto, no agent, broker, financial advisor or
other firm or person is or will be entitled to any broker's or finder's fee or
similar payment by the Company or any of the Company Subsidiaries in connection
with this Agreement or the Merger.
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Section 2.25. Other Acquisition Proposals. From and after the date hereof
and until the Effective Time, the Company and the Company Subsidiaries shall
not, and each of them shall cause its directors, officers, employees and
representatives not to, solicit or encourage inquiries or proposals with respect
to, furnish any information relating to, or participate in any negotiations or
discussions concerning, any acquisition or purchase of all or a substantial
portion of the assets of, or a substantial equity interest in, the Company or
any of the Company Subsidiaries or any business combination with the Company or
any of the Company Subsidiaries, other than as contemplated by this Agreement;
provided, however, that the Board of Directors of the Company may take such
action as in the opinion of its counsel may be appropriate to fulfill the
directors' fiduciary obligations with respect to an unsolicited bona fide
inquiry or proposal from another party. The Company shall promptly notify
Mahaska of all such inquiries or proposals.
Section 2.26. [Intentionally Omitted].
Section 2.27. Union Relations. No employees of the Company or any of the
Company Subsidiaries are members of a collective bargaining unit of the Company
or any of the Company Subsidiaries, and there have not been any, and there are
no threatened or contemplated, attempts to organize for collective bargaining
purposes any of the employees of the Company or any of the Company Subsidiaries.
Section 2.28. Patents, Trademarks, Etc. Schedule 2.28 hereto sets forth all
domestic and foreign letters patent, patents, patent applications, patent
licenses, computer programs, proprietary software (not shelf software, which
costs less than five thousand dollars ($5,000.00) per year), software licenses,
microfiche, know-how licenses, copyrights, unpatented inventions, trademarks,
service marks, trade names, trademarks and service mark registrations and
applications, copyright registrations and applications and similar industrial,
commercial or intellectual rights owned or applied for by the Company or the
Company Subsidiaries or used in connection with the operation of the business of
the Company or the Company Subsidiaries (hereinafter referred to as the "Company
Intellectual Property"). Except as indicated on Schedule 2.28 hereto, there are
no claims or demands of any person, firm or corporation pertaining to the
Company Intellectual Property, and no proceedings have been instituted, or are
pending or, to the best knowledge of the Company, threatened which challenge the
rights of the Company or any of the Company Subsidiaries in respect thereof, and
none of the Company Intellectual Property is subject to any outstanding order,
decree, judgment, stipulation, injunction, restriction or agreement restricting
the scope or the use thereof. To the best knowledge of the Company, neither the
Company nor any of the Company Subsidiaries is infringing or violating, and
during the past five (5) years has not infringed or violated, any adversely held
patent, copyright, trademark, service mark, trade name or similar right, or
engaged in any kind of unfair or unlawful competition or wrongfully used any
confidential information or trade secrets or patentable inventions of any former
employee of the Company or any of the Company Subsidiaries or any other person,
firm or corporation. To the best knowledge of the Company, neither the Company
nor any of the Company Subsidiaries is wrongfully using any such information nor
does any of them have any knowledge of any patented device or application
thereof which would materially and adversely affect any aspect of the business
or operations of the Company, the Surviving Corporation or any Company
Subsidiary. Except as set forth on Schedule 2.28 hereto, the Company and the
Company Subsidiaries have the right and authority, and the Surviving Corporation
and the Company Subsidiaries will have the right and authority from and after
the Effective time to use all Company Intellectual Property as is necessary to
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enable them to conduct and to continue to conduct all phases of the business of
the Company and the Company Subsidiaries in the manner presently conducted by
them, and such use, to the best knowledge of the Company, does not, and will
not, conflict with, infringe on or violate any patent, copyright, trademark,
service mark, trade name or any other rights of others.
Section 2.29. Takeover Laws Not Applicable. The provisions of Section 203 of
the Delaware Law will not apply to this Agreement, the Merger or the
transactions contemplated hereby and thereby. The Company has taken all steps
necessary to irrevocably exempt the transactions contemplated by this Agreement
from such Section 203 and any other applicable state takeover law and from any
applicable charter or contractual provision containing change of control or
anti-takeover provisions.
Section 2.30. Material Interests of Certain Persons. Except as disclosed on
Schedule 2.30 hereto, no officer or director of the Company, or any "associate"
(as such term is defined in Rule 14a-1 under the Exchange Act) of any such
officer or director, has any material interest in any material contract or
property (real or personal), tangible or intangible, used in or pertaining to
the business of the Company or any of the Company Subsidiaries.
Section 2.31. Disclosure; Information in the Proxy Statement/Prospectus. No
representation or warranty by the Company in this Agreement and no statement
contained in any certificate furnished or to be furnished by the Company to
Mahaska pursuant to the provisions of this Agreement contains or will contain
any untrue statement of material fact or omits or will omit to state any
material fact necessary, in light of the circumstances under which it is made,
in order to make the statements herein or therein not misleading. Any written
information supplied by the Company specifically for inclusion or incorporation
by reference in the Proxy Statement/Prospectus and which is included or
incorporated by reference therein shall not, at the date the Proxy
Statement/Prospectus (or any amendment thereof or supplement thereto) is filed
with the SEC, at the time of the Mahaska shareholders' meeting (the "Mahaska
Meeting", as described in Section 4.4 hereof), at the time of the Company's
shareholders meeting (the "Company Meeting", as described in Section 4.2
hereof), and at the time the Proxy Statement/Prospectus becomes effective with
the SEC as a registration statement, be false or misleading with respect to any
material fact, omit to state any material fact required to be stated therein or
necessary in order to make the statements made therein, in the light of the
circumstances under which they are made, not misleading, or omit to state any
material fact necessary to correct any statement in any earlier communication
with respect to the solicitation of proxies for the Mahaska Meeting or the
Company Meeting that has become materially false or misleading. If at any time
prior to the Effective Time any event relating to any of the Company
Subsidiaries or any of their respective directors or officers should be
discovered by the Company which should be set forth in a supplement to the Proxy
Statement/Prospectus, the Company shall promptly inform Mahaska in writing.
Notwithstanding the foregoing, the Company makes no representation or warranty
with respect to any information to be contained in the Proxy
Statement/Prospectus other than information provided in writing by the Company
specifically for inclusion or incorporation by reference in the Proxy
Statement/Prospectus. For purposes of this Section and this Agreement, "Proxy
Statement/Prospectus" means the joint proxy which constitutes (i) a proxy
statement to be delivered to Mahaska's shareholders in connection with the
Mahaska Meeting, (ii) a registration statement on Form S-4 to be filed by
Mahaska with the SEC to register the Mahaska Common Stock that will be received
by the shareholders of the Company in the Merger pursuant to the Securities Act
of 1933, as amended (the "Securities Act"), and (iii) a joint proxy statement
and prospectus to be delivered to the Company's shareholders in connection with
the Mahaska Common Stock and the Company Meeting with respect to the Merger.
-25-
Section 2.32. Year 2000 Compliant. At Mahaska's request, the Company will
furnish to Mahaska a true, correct and complete copy of any internal
investigations, memorandum, budget plans, forecasts or reports concerning the
Year 2000 Compliance of the products, services, operations, systems, supplies
and facilities of the Company and its Subsidiaries and their vendors. The
Company and its Subsidiaries are in compliance in all material respects with the
Year 2000 guidelines of the Federal Financial Institutions Examination Counsel
as set forth in its Interagency Statement dated May 5, 1997. Neither the Company
nor any of the Company Subsidiaries will receive a rating of less than
"satisfactory" on any Year 2000 Report of Examination of any Regulatory
Authority. The Company has disclosed to Mahaska a complete and accurate copy of
its plan, including an estimate of the anticipated associated costs, for
addressing the issues set forth in the statements of the FFIEC dated May 5,
1997, entitled "Year 2000 Project Management Awareness," and December 17, 1997,
entitled "Safety and Soundness Guidelines Concerning the Year 2000 Business
Risk," as such issues affect it and its Subsidiaries, and such plan is in
material compliance with the schedule set forth in the FFIEC statements.
Section 2.33. No Company Investment in Mahaska Common Stock. Neither the
Company nor the Company Subsidiaries has acquired or is the beneficial owner of
any Mahaska Common Stock.
Section 2.34. Board Recommendation. The Board of Directors of the Company
has, by resolutions duly adopted by the requisite vote of directors present at a
meeting of such Board duly called and held on February 2, 1999, determined that
the Merger in accordance with the terms of this Agreement is fair and in the
best interests of its shareholders, and will recommend that the shareholders of
the Company adopt this Agreement subject to its fiduciary obligations.
Section 2.35. Vote Required. The adoption of this Agreement by holders of [a
majority of the outstanding shares] of the Company's Common Stock is the only
vote of the holders of any class or series of the capital stock of the Company
required to approve this Agreement, the Merger and the other transactions
contemplated hereby.
Section 2.36. Shareholder Appraisal Rights. The Company shall not settle or
compromise any claim for shareholder appraisal rights in respect of the Merger
prior to the Effective Time without the prior written consent of Mahaska.
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ARTICLE III
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF MAHASKA
As an inducement to the Company to enter into and perform this Agreement,
Mahaska represents and warrants to, and agrees with, the Company as follows:
Section 3.1. Organization of Mahaska. Mahaska is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Iowa, with full corporate power and authority to own its property and conduct
its business and to enter into and perform this Agreement. Mahaska is duly
authorized to transact business in, and is in good standing under the laws of,
the State of Iowa. The character of the properties owned and leased by Mahaska
and the nature of the business conducted by it do not require that Mahaska be
qualified to do business in any other state or jurisdiction, except where the
failure to be so qualified would not have a Material Adverse Effect on Mahaska.
Section 3.2. Mahaska Stock. (a) As of the date of this Agreement, the
authorized capital stock of Mahaska consists of 20,000,000 shares of Common
Stock, $5.00 par value, of which 3,636,345 shares of such Common Stock are
issued and outstanding and 171,156 shares of such Common Stock are held in
Mahaska's treasury.
(b) Prior to the Effective Time, Mahaska has an adequate number of Common
Stock to make the issuances contemplated hereby.
(c) The shares of Mahaska Common Stock to be issued in the Merger pursuant
to this Agreement (including any shares to be issued pursuant to the exercise of
any Company options which, by virtue of the Merger, will be converted into the
right to acquire Mahaska Common Stock) will, when issued, be duly authorized,
validly issued, fully paid and non-assessable.
(d) Each subsidiary of Mahaska (the "Mahaska Subsidiaries") which is a
financial institution is duly organized, and validly existing as an Iowa banking
corporation or savings association under the laws of the State of Iowa or, if a
national bank, or federal thrift or savings association, as a national banking,
thrift or savings association under the laws of the United States. Each of the
Mahaska Subsidiaries which is not a financial institution is duly organized,
validly existing and in good standing under the laws of its state of
incorporation. All of the Mahaska Subsidiaries have full corporate power and
authority to own or lease their properties and carry on their businesses as now
being conducted, and each is qualified to do business as a foreign corporation
in each state where the character and location of its properties or the nature
of the business conducted by it requires qualification. All necessary regulatory
approvals for the acquisition and ownership by Mahaska of the capital stock of
each of the Mahaska Subsidiaries have been received by Mahaska. Each of the
Mahaska Subsidiaries has all consents, permits, franchises, licenses,
concessions, authorities (including without limitation all easements, rights of
way and similar authorities), authorizations and approvals of Federal, state and
local governmental authorities and other persons and entities required in
connection with the ownership and operation of its properties and the carrying
on of its business as now being conducted, all of which are in full force and
effect and no suspension or cancellation of any of which is threatened, except
for those whose failure to obtain or maintain would not have a Material Adverse
Effect on Mahaska, other than consents, authorizations and approvals required
relating to the transactions contemplated by this Agreement.
(e) All shares of the issued and outstanding capital stock of each of the
Mahaska Subsidiaries are validly issued, fully paid and non-assessable, were not
issued in violation of the preemptive rights of any person, and were issued in
full compliance with all applicable state and Federal laws.
(f) There are no outstanding warrants, options, subscriptions, contracts,
rights or other arrangements or commitments obligating any Mahaska Subsidiary to
issue any additional shares of its capital stock, nor are there any securities,
debts, obligations or rights outstanding which are convertible into or
exchangeable for shares of its capital stock. There are not outstanding
contracts, rights or other arrangements or commitments which would obligate any
Mahaska Subsidiary to purchase or redeem or otherwise acquire any shares of its
capital stock or any other security.
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Section 3.3. Corporate Authorization. The execution, delivery and
performance of this Agreement and the related documents have been duly and
validly authorized and approved by the Board of Directors of Mahaska and, do not
and will not violate or conflict with the articles of incorporation or by-laws
of Mahaska and do not and will not violate or conflict with or result in any
material default, any acceleration of required performance or any loss of a
material benefit under any note, bond, mortgage, indenture, lease, franchise,
license, permit, approval, contract, agreement or other instrument or document
or any order, writ, injunction, decree, judgment, statute, rule or regulation to
which Mahaska or any Mahaska Subsidiary is a party or subject or by which
Mahaska or any Mahaska Subsidiary is a party (other than the regulatory
approvals referred to in Section 4.1 hereof, the approval of the Agreement and
the Merger by Mahaska's shareholders is necessary to consummate the Merger.
Section 3.4. Financial Statements Previously Delivered. (a) As soon as
available, Mahaska will furnish to the Company copies of the following financial
statements:
(i) All financial statements of Mahaska and the Mahaska Subsidiaries as
of any date, or for any period ending, after December 31, 1997, which shall
be issued or distributed to shareholders, directors or management of Mahaska
and its financial institution subsidiaries prior to the Effective Time; and
(ii) An unaudited consolidated balance sheet of Mahaska and its
subsidiaries as of September 30, 1998, together with a related statement of
profit and loss for the three-month period then ended.
(b) Each of the financial statements referred to in paragraph (a) of this
Section has been prepared in accordance with generally accepted accounting
principles and practices consistently applied (except for the absence of
footnotes and year end adjustments in the case of the unaudited financial
statements as of and for the period ended September 30, 1998). Each of the
financial statements referred to in paragraph (a) of this Section is true,
correct and complete in all material respects and presents fairly the financial
condition of Mahaska and the Mahaska Subsidiaries on a consolidated basis, or,
as the case may be, the financial condition of a Company Subsidiary, as of the
date thereof or, as the case may be, the results of operations (on a
consolidated basis, if applicable) for the period covered thereby.
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Section 3.5. Governmental Regulation. (a) Each of Mahaska and its
subsidiaries holds all consents, licenses, certificates, permits,
authorizations, approvals, franchises and rights of Federal, state, local and
other public authorities and other persons and entities required in connection
with the ownership and operation of its properties and the carrying on of its
business as now being conducted, all of which are now in full force and effect,
and between the date hereof and the Effective Time, Mahaska will, and will cause
each of its subsidiaries to, maintain all such consents, licenses, certificates,
permits, authorizations, approvals, franchises and rights in full force and
effect. Each of Mahaska and its subsidiaries has conducted its business so as to
comply in all material respects with all applicable Federal, state and local
statutes, regulations, ordinances and rules, including (without limitation)
applicable banking laws, Federal and state securities laws, and laws and
regulations concerning minimum capital requirements, truth-in-lending, usury,
fair credit reporting, fair lending and equal credit opportunity, currency
reporting, community reinvestment, Internal Revenue Service information
reporting and back-up withholding, consumer protection, occupational safety,
employee benefit plans, environmental matters, fair employment practices and
fair labor standards. Since December 31, 1994, neither Mahaska nor any of
Mahaska's Subsidiaries has received from any governmental or regulatory
authority any written requirement, recommendation or suggestion of a material
nature concerning their capital structure, loan policies or portfolio, or other
banking or business practices or procedures that has not been resolved to the
reasonable satisfaction of such regulatory authority.
(b) Mahaska is duly registered as a bank holding company pursuant to the BHC
Act and as a savings and loan holding company with the OTS.
(c) Mahaska has previously furnished to the Company copies of (i) Mahaska's
Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q since December
31, 1994, in each case as filed with the SEC, (ii) the Company's annual reports
on Form Y-6 and quarterly reports on Form Y-9 since December 31, 1994, each as
filed with the FRB, and (iii) all other documents incorporated by reference in
whole or in part in the foregoing (the documents referred to in (i) through
(iii), including all amendments and supplements thereto and all financial
statements and notes contained therein, are hereinafter collectively referred to
as the "Reports"). The Reports, as of the respective times of filing thereof
with the SEC or the FRB, as the case may be, complied as to form and substance
with all material requirements of the laws, rules and regulations applicable
thereto and did not include any untrue or misleading statement of or with
respect to a material fact or omit to state any material fact necessary in order
to make the statements made therein, in the light of the circumstances under
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which they were made, not misleading. Since December 31, 1994, Mahaska and each
of Mahaska's Subsidiaries have filed all reports and registration statements
required to be filed by each of them with the SEC, the FRB or any other
regulatory authority in accordance with all material requirements of the laws,
rules and regulations applicable thereto except where the failure to so file
such reports and registration statements will not have a Material Adverse Effect
on Mahaska, any Mahaska Subsidiary that is a financial institution or the
consummation of the transactions contemplated by this Agreement. From and after
the date hereof until the Effective Time, concurrently with the filing thereof
with any regulatory agency or the mailing thereof to the shareholders of
Mahaska, as the case may be, Mahaska will deliver to the Company copies of any
of the reports not previously filed or mailed as aforesaid prior to the date
hereof.
Section 3.6. Disclosure; Information in the Proxy Statement/Prospectus. No
representation or warranty by Mahaska in this Agreement and no statement
contained in any certificate furnished or to be furnished by Mahaska to the
Company pursuant to the provisions of this Agreement contains or will contain
any untrue statement of material fact or omits or will omit to state any
material fact necessary, in light of the circumstances under which it is made,
in order to make the statements herein or therein not misleading. Any written
information supplied by Mahaska specifically for inclusion or incorporation by
reference in the Proxy Statement/Prospectus and which is included or
incorporated by reference therein shall not, at the date the Proxy
Statement/Prospectus (or any amendment thereof or supplement thereto) is filed
with the SEC, at the time of the Mahaska Meeting, at the time of the Company
Meeting, and at the time the Proxy Statement/Prospectus becomes effective with
the SEC as a registration statement, be false or misleading with respect to any
material fact, omit to state any material fact required to be stated therein or
necessary in order to make the statements made therein, in light of the
circumstances under which they are made, not misleading, or omit to state any
material fact necessary to correct any statement in any earlier communication
with respect to the solicitation of proxies for the Mahaska Meeting or the
Company Meeting that has become materially false or misleading. If at any time
prior to the Effective Time any event relating to Mahaska or its directors or
officers should be discovered by Mahaska which should be set forth in a
supplement to the Proxy Statement/Prospectus, Mahaska shall promptly inform the
Company in writing. Notwithstanding the foregoing, Mahaska makes no
representation or warranty with respect to any information to be contained in
the Proxy Statement/Prospectus which is provided in writing by the Company
specifically for inclusion or incorporation by reference in the Proxy
Statement/Prospectus.
Section 3.7. No Mahaska Investment in the Company's Common Stock. Mahaska
has not acquired or is the beneficial owner of any of the Company's Common
Stock.
Section 3.8. Board Recommendation. The Board of Directors of Mahaska has, by
resolutions duly adopted by the requisite vote of directors present at a meeting
of such Board duly called and held on February 2, 1999, determined that the
Merger in accordance with the terms of this Agreement is fair and in the best
interests of its shareholders and will recommend, subject to their fiduciary
duties, that the shareholders of Mahaska approve the Merger and ratify this
Agreement.
Section 3.9. Vote Required. The approval of the Merger by holders of a
majority of the outstanding shares of Mahaska Common Stock is the only vote of
the holders of any class or series of the capital stock of Mahaska required to
approve this Agreement, the Merger and the other transactions contemplated
hereby.
Section 3.10. Undisclosed Liabilities. All Liabilities have, in the case of
Mahaska and the Mahaska Subsidiaries, been disclosed or reserved against in
Mahaska's audited financial statements as of December 31, 1997 or in the notes
thereto (the "Mahaska 1997 Balance Sheet"), and Mahaska and the Mahaska
Subsidiaries have no other Liabilities except (a) Liabilities incurred since
December 31, 1997 in the ordinary course of business or (b) as disclosed on
Schedule 3.10.
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Section 3.11. Environmental Matters. (a) Except as disclosed on Schedule
3.11(a), to the best of Mahaska's knowledge, no Hazardous Materials have been
located in or on any of the real property owned or used by Mahaska or any
Mahaska Subsidiaries (hereinafter referred to collectively as the "Mahaska Real
Property") or have been released into the environment, or discharged, emitted,
placed or disposed of at, on, under or by the Mahaska Real Property, and the
Mahaska Real Property and the operations of Mahaska and the Mahaska Subsidiaries
thereon have complied in all respects with any applicable Environmental Laws,
and any applicable law, regulation or requirement relating to environmental and
occupational health and safety matters and Hazardous Materials. None of the
Mahaska Real Property is a facility at which there has been a release of
Hazardous Materials that exceeds or violates any applicable or relevant and
appropriate Environmental Laws. Except as disclosed in the Disclosure Statement,
there exist no underground storage tanks, landfills, or land disposal or dumps
on the Mahaska Real Property. None of the Mahaska Real Property is discharging
oil or poses a substantial threat of a discharge of oil, within the meaning of
the Oil Pollution Act of 1990.
(b) Except as disclosed on the Schedule 3.11(b) hereto no real property
occupied, owned, operated, leased or used by Mahaska or any Mahaska Subsidiary,
or in which any Mahaska Subsidiary holds a beneficial interest, whether as
owner, mortgagee or otherwise, including (without limitation) as a holder of a
collateral assignment of a beneficial interest in a land trust, constitutes a
hazardous substance disposal site listed pursuant to Section 455B.426 of the
Iowa Code, the use or transfer of which is restricted under Section 455B.430 of
the Iowa Code.
Section 3.12. Governmental Regulations. (a) Each of Mahaska and the Mahaska
Subsidiaries holds all consents, licenses, certificates, permits,
authorizations, approvals, franchises and rights of Federal, state, local and
other public authorities and other persons and entities required in connection
with the ownership and operation of its properties and the carrying on of its
business as now being conducted, all of which are now in full force and effect,
and between the date hereof and the Effective Time, Mahaska will use its best
efforts to, and will cause each Mahaska Subsidiary to use its best efforts to,
maintain all such consents, licenses, certificates, permits, authorizations,
approvals, franchises and rights in full force and effect. Mahaska shall
promptly notify the Company of the loss or threat of loss of any such consent,
license, certificate, permit, authorization, approval, franchise or right.
Neither Mahaska nor any Mahaska Subsidiary which is a financial institution is a
party or subject to any agreement with, or directive or order issued by, the
FRB, the FDIC, the Comptroller of the Currency, the OTS, the Superintendent or
any other regulatory authority, which imposes any restrictions or requirements
not applicable generally to bank holding companies (in the case of the Mahaska)
or financial institutions (in the case of Mahaska Subsidiaries which are
financial institutions), with respect to the conduct of its business. Each of
Mahaska and the Mahaska Subsidiaries has conducted its business so as to comply
in all material respects with all applicable Federal, state and local statutes,
regulations, ordinances and rules, including (without limitation) applicable
banking laws, Federal and state securities laws, and laws and regulations
concerning minimum capital requirements, truth-in-lending, usury, fair credit
reporting, fair lending and equal credit opportunity, currency reporting,
community reinvestment, Internal Revenue Service information reporting and
back-up withholding, consumer protection, occupational safety, employee benefit
plans, environmental matters, fair employment practices and fair labor
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standards. Except as disclosed on Schedule 3.12 hereto, since December 31, 1994,
neither Mahaska nor any of the Mahaska Subsidiaries has received from any
governmental or regulatory authority any written requirement, recommendation or
suggestion of a material nature concerning their capital structure, loan
policies or portfolio, or other banking or business practices or procedures that
has not been resolved to the reasonable satisfaction of such regulatory
authority.
(b) Mahaska is a bank holding company subject to the "Bank Holding Company
Act of 1956".
(c) Mahaska and each Mahaska Subsidiary which is a financial institution are
in full compliance with applicable minimum capital requirements prescribed by
the FRB or FDIC and any other regulatory authority having regulatory
jurisdiction over Mahaska or such Mahaska Subsidiary, as the case may be, and
each such Mahaska Subsidiary is "adequately capitalized" or "well capitalized"
within the meanings of such terms as used in Section 38(b) of the Federal
Deposit Insurance Act, as amended (the "FDI Act"), and the applicable
regulations promulgated thereunder.
(d) Except as set forth on Schedule 3.12(d), the deposits of each Mahaska
Subsidiary which is a financial institution are insured by the FDIC in
accordance with the FDI Act and the rules and regulations of the FDIC adopted
thereunder.
(e) Mahaska has previously furnished to the Company all requested copies of
(i) Mahaska's Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q
since December 31, 1994, in each case as filed with the SEC, (ii) each proxy
statement relating to any meeting of Mahaska's shareholders (whether annual or
special) which has been held since December 31, 1994, (iii) the annual reports
to Mahaska's shareholders and quarterly reports to Mahaska's shareholders since
December 31, 1994, (iv) Mahaska's reports on Form FRY-6 and Form FRY-9 since
December 31, 1994, each as filed with the FRB, (v) each financial report of
condition and income filed by Mahaska and each Mahaska Subsidiary with any
supervisory authority since December 31, 1994, (vi) all other reports or
registration statements filed by Mahaska or any Mahaska Subsidiary with the SEC
or the FRB since December 31, 1994, and (vii) all other documents incorporated
by reference in whole or in part in the foregoing (the documents referred to in
(i) through (vii), including all amendments and supplements thereto and all
financial statements and notes contained therein, are hereinafter collectively
referred to as the Mahaska Reports"). The Mahaska Reports, as of the respective
times of filing thereof with the SEC, the FRB or any other regulatory authority,
as the case may be, complied as to form and substance with all material
requirements of the laws, rules and regulations applicable thereto and did not
include any untrue or misleading statement of or with respect to a material fact
or omit to state any material fact necessary in order to make the statements
made therein, in the light of the circumstances under which they were made, not
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misleading. Since December 31, 1994, Mahaska and each of the Mahaska
Subsidiaries have filed all reports and registration statements required to be
filed by each of them with the SEC, the FRB or any other regulatory authority in
accordance with all material requirements of the laws, rules and regulations
applicable thereto except where the failure to so file such reports and
registration statements will not have a material effect on Mahaska or any
Mahaska Subsidiary. From and after the date hereof until the Effective Time,
concurrently with the filing thereof with any regulatory agency or the mailing
thereof to the shareholders of Mahaska, as the case may be, Mahaska will deliver
to the Company copies of any of the Mahaska Reports not previously filed or
mailed as aforesaid prior to the date hereof.
(f) Mahaska Common Stock is duly registered under Section 12(g) of the
Exchange Act. Mahaska has previously furnished, or will promptly furnish upon
receipt, to the Company copies of any Statements on Schedule 13D, 13G, 14B or
14D-1 and Forms 3, 4 and 5 under the Exchange Act and any amendments to any such
statements or forms received by Mahaska or known by it to have been filed with
the SEC with respect to the ownership of, or solicitation of proxies in
connection with, any of the Mahaska Common Stock.
Section 3.13. Litigation. Except as disclosed on Schedule 3.13 hereto, there
are no legal, arbitration, quasi-judicial or administrative proceedings of any
kind or nature pending or, to the best of Mahaska's knowledge and belief,
threatened, affecting or involving Mahaska or any of the Mahaska Subsidiaries or
any of their respective properties or any of the Mahaska Stock or the capital
stock of any of the Mahaska Subsidiaries, which may have a Material Adverse
Effect on Mahaska, the Surviving Corporation or any of the Mahaska Subsidiaries,
and there has been no material default on the part of Mahaska or any of the
Mahaska Subsidiaries with respect to any judgment, order, writ, injunction,
decree, award, rule or regulation issued in any legal, quasi-judicial or
administrative proceeding. Schedule 3.13 hereto sets forth a description of all
material litigation, arbitration or quasi-judicial or administrative proceedings
to which Mahaska or any Mahaska Subsidiary was a party at any time since
December 31, 1994.
Section 3.14. Loans. (a) The allowance for loan losses reflected on the
Mahaska 1997 Balance Sheet was, and such allowance reflected on each
consolidated balance sheet of Mahaska and the Mahaska Subsidiaries as of any
date subsequent to the date hereof, which is required to be furnished by Mahaska
to the Company will in the reasonable opinion of management of Mahaska be, in
each case as of the date thereof, adequate in accordance with generally accepted
accounting principles to provide for losses relating to or inherent in the loan
and lease portfolios (including accrued interest receivables) of Mahaska and the
Mahaska Subsidiaries and other extensions of credit (including letters of credit
and commitments to make loans or extend credit) by Mahaska and the Mahaska
Subsidiaries.
(b) The aggregate amount of all Non-Performing and Materially Impaired
Assets on the books of Mahaska and the Mahaska Subsidiaries does not exceed 2.0%
of the gross amount of all loans on the books of Mahaska and the Mahaska
Subsidiaries.
(c) Except as disclosed on Schedule 3.14(c) hereto, (i) each outstanding
loan, lease or other extension of credit of Mahaska or any of the Mahaska
Subsidiaries is a legal, valid and binding obligation, is in full force and
effect and is enforceable in accordance with its terms except as may be limited
by bankruptcy, insolvency, moratorium, reorganization or similar laws affecting
the rights of creditors generally or equitable principles limiting the right to
obtain specific performance or other similar relief; (ii) each of Mahaska and
the Mahaska Subsidiaries has duly performed in all material respects all of its
obligations thereunder to the extent that such obligations to perform have
accrued; (iii) all documents and agreements necessary for Mahaska or any of the
Mahaska Subsidiaries that is a party thereto to enforce such loan, lease or
other extension of credit are in existence; (iv) to the knowledge of Mahaska no
claims, counterclaims, set-off rights or other rights exist, nor do the grounds
for any such claim, counterclaim, set-off right or other right exist, with
respect to any such loans, leases or other extensions of credit which could
impair the collectibility thereof; and (v) each such loan, lease and extension
of credit has been, in all material respects, originated and serviced in
accordance with Mahaska's or any Mahaska Subsidiary's then applicable
underwriting guidelines, the terms of the relevant credit documents and
agreements and applicable laws and regulations.
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(d) Schedule 3.14(d) hereto lists all loan commitments exceeding $250,000 of
Mahaska and the Mahaska Subsidiaries outstanding as of the date hereof. Except
as set forth on Schedule 3.14(d) hereto, as of the date hereof, (i) there are no
loans, leases, other extensions of credit or commitments to extend credit of
Mahaska or any of the Mahaska Subsidiaries that have been or, to the best of
Mahaska's knowledge, should have been classified by Mahaska and the Mahaska
Subsidiaries as "Other Assets Especially Mentioned," "Substandard," "Doubtful,"
"Loss" or any comparable classification and (ii) there are no loans due to
Mahaska or any of the Mahaska Subsidiaries as to which any payment of principal,
interest or any other amount is 30 days or more past due.
Section 3.15. Derivative Transactions. Except as disclosed on Schedule 3.15
hereto, neither Mahaska nor any of the Mahaska Subsidiaries has during the past
three (3) years, is or shall engage in transactions in or involving forwards,
futures, options on futures, swaps or other derivative instruments. As of the
date hereof, none of the parties to any contract or agreement entered into by
Mahaska or any Mahaska Subsidiary with respect to any such instrument is in
default with respect to such contract or agreement, and no such contract or
agreement, were it to be a loan held by Mahaska or any of the Mahaska
Subsidiaries, would be classified as "Other Assets Especially Mentioned,"
"Substandard," "Doubtful," "Loss," or any comparable classification. The
financial position of Mahaska and the Mahaska Subsidiaries on a consolidated
basis under or with respect to each such instrument has been reflected in the
books and records of Mahaska and the Mahaska Subsidiaries in accordance with
generally accepted accounting principles consistently applied, and except as
described on Schedule 3.15 hereto, there is no open exposure of Mahaska or any
of the Mahaska's Subsidiaries with respect to any such instrument (or with
respect to multiple instruments with respect to any single party).
Section 3.16. Takeover Laws Not Applicable. No anti-takeover provisions of
the Iowa Act will apply to this Agreement, the Merger or the transactions
contemplated hereby and thereby. Mahaska has taken all steps necessary to
irrevocably exempt the transactions contemplated by this Agreement from any
applicable state takeover law and from any applicable charter or contractual
provision containing change of control or anti-takeover provisions.
Section 3.17. Year 2000 Compliant. Mahaska and its Subsidiaries are in
compliance in all material respects with the Year 2000 guidelines of the Federal
Financial Institutions Examination Counsel as set forth in its Interagency
Statement dated May 5, 1997. Neither Mahaska nor any of the Mahaska Subsidiaries
will receive a rating of less than "satisfactory" on any Year 2000 Report of
Examination of any Regulatory Authority. Mahaska has disclosed to the Company a
complete and accurate copy of its plan, including an estimate of the anticipated
associated costs, for addressing the issues set forth in the statements of the
FFIEC dated May 5, 1997, entitled "Year 2000 Project Management Awareness," and
December 17, 1997, entitled "Safety and Soundness Guidelines Concerning the Year
2000 Business Risk," as such issues affect it and its Subsidiaries, and such
plan is in material compliance with the schedule set forth in the FFIEC
statements.
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ARTICLE IV
ADDITIONAL AGREEMENTS
Section 4.1. Regulatory Approvals. As promptly as practicable, Mahaska shall
prepare and file, or cause to be prepared and filed, applications on its part
and on the part of its affiliates for required approvals in connection with the
Merger with the FRB pursuant to the BHC Act, the Superintendent, pursuant to the
Iowa Banking Act, and the OTS, pursuant to the Home Owners' Loan Act of 1933, as
amended ("HOLA"). The Company will, and will cause each Company Subsidiary to,
cooperate fully in the preparation and submission of such applications, and
without limiting the foregoing, the Company will promptly furnish Mahaska with
any information relating to the Company or any of the Company Subsidiaries which
is required under any applicable law or regulation, or by any regulatory or
governmental authority, for inclusion in any such application. In the event of
an adverse or unfavorable determination by any regulatory authority, or should
the Merger be challenged or opposed by any administrative or legal proceeding,
whether by the United States Department of Justice or otherwise, the
determination of whether and to what extent to defend any such action, or to
seek appeal or review, administrative or otherwise, or other appropriate
remedies shall be made by Mahaska.
Section 4.2. Meeting of the Company's Shareholders. As soon as practicable
following the approval by the SEC of the Proxy Statement/Prospectus, the Company
shall take all action necessary in accordance with the Delaware General
Corporation Law and its Certificate of Incorporation and Bylaws to convene a
meeting of its shareholders (the "Company Meeting") promptly to consider and
vote upon approval of the Merger and the ratification of this Agreement. The
Company shall, subject to Section 2.25 hereof, use its reasonable efforts to
solicit from the shareholders of the Company proxies in favor of such approval
and ratification and take all other action reasonably necessary or, in the
reasonable opinion of the Company, helpful to secure a vote of the shareholders
of the Company in favor of the Merger and the ratification of this Agreement.
Section 4.3. Cooperation in Registration of Mahaska Common Stock. The
Company shall cooperate fully with Mahaska and shall furnish such information
concerning the Company as Mahaska shall request in connection with the
registration with the SEC by Mahaska of the Mahaska Common Stock and the
preparation and filing with the SEC by Mahaska of the Proxy Statement/Prospectus
in connection with the Mahaska Meeting. In addition, the Company shall obtain
the consent of KPMG Peat Marwick LLP to the inclusion of such audited financial
statements of the Company in the Proxy Statement/Prospectus as may be necessary
or desirable, as determined by Mahaska.
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Section 4.4. Meeting of Mahaska Shareholders. As soon as practicable
following the approval by the SEC of the Proxy Statement/Prospectus, Mahaska
shall take all action necessary in accordance with the Iowa Business Corporation
Act and its Articles of Incorporation and Bylaws to convene a meeting of its
shareholders (the "Mahaska Meeting") promptly to consider and vote upon approval
of the Merger, the ratification of this Agreement, and the approval of the
issuance of the Mahaska Common Stock to the Company shareholders. Mahaska will
use its reasonable efforts to solicit from the shareholders of Mahaska proxies
in favor of such approvals and ratification and will take all other action
reasonably necessary or, in the reasonable opinion of Mahaska, helpful to secure
a vote of the shareholders of Mahaska in favor of the Merger, the ratification
of this Agreement and the issuance of Mahaska Common Stock contemplated hereby
and thereby.
Section 4.5. Registration and Listing of Mahaska Common Stock. As soon as
practicable after the date of this Agreement, Mahaska will file a registration
statement on Form S-4 with the SEC under the Securities Act with respect to the
offering, sale, and delivery of the shares of Mahaska Common Stock to be issued
to the Company's shareholders pursuant to this Agreement; and Mahaska will use
all reasonable efforts to cause such registration statement to become effective
as promptly as practicable after filing and to cause the shares of Mahaska
Common Stock registered thereby to be duly quoted for trading on the Nasdaq
National Market ("Nasdaq"). Mahaska shall also use all reasonable efforts to
take any action required to be taken under state securities laws with respect to
the Mahaska Common Stock.
Section 4.6. Cooperation in Preparation of Proxy Statement/Prospectus.
Mahaska shall cooperate fully with the Company and shall furnish such
information concerning Mahaska as the Company shall request in connection with
the preparation and filing with the SEC by the Company of the Proxy
Statement/Prospectus in connection with the Company Meeting. In addition,
Mahaska shall obtain the consent of KPMG Peat Marwick LLP to the inclusion of
such audited financial statements of Mahaska in the Proxy Statement/Prospectus
as may be necessary or desirable, as determined by Mahaska.
Section 4.7. Pooling of Interests Opinion and Tax Opinion. As promptly as
practicable, Mahaska shall receive the opinions referred to in Section 5.4
hereof. The Company shall cooperate in providing information and taking action
if required or deemed appropriate by Mahaska and will, and will cause each
Company Subsidiary to, cooperate fully in such request, and, without limiting
the foregoing, the Company will promptly furnish Mahaska with any information
relating to the Company or any of the Company Subsidiaries which is required or
deemed appropriate by Mahaska for inclusion in such request.
Section 4.8. Access and Information. The Company shall, and shall cause each
Company Subsidiary to, afford to Mahaska, its directors, officers, employees,
accountants, counsel and other representatives (hereinafter referred to as the
"Mahaska Representatives") access, during the period from the date hereof to the
Effective Time, to the properties, assets, books, contracts, returns, reports
and records of the Company and the Company Subsidiaries, and the Company shall,
and shall cause the Company Subsidiaries to, furnish to Mahaska such other
information concerning the respective businesses, properties and personnel of
the Company and each Company Subsidiary as Mahaska may reasonably request.
Mahaska shall keep confidential, and shall cause the Mahaska Representatives to
keep confidential, any such information so obtained from the Company and the
Company Subsidiaries, including lists of the Company's stockholders furnished to
Mahaska in accordance with the terms of Section 4.6 hereof; provided, however,
that the foregoing restriction shall not apply to any such information which is
or comes into the public domain otherwise than as a result of a breach of the
provisions of this Section, was in the possession of Mahaska or any Mahaska
Representative prior to the negotiations with the Company relating to this
Agreement or at any time comes into the possession of Mahaska or any Mahaska
Representative from third parties who have the right to disclose such
information otherwise than in connection with this Agreement. In the event that
this Agreement is terminated without the Merger having been consummated, Mahaska
shall, and shall cause the Mahaska Representatives to, return promptly to the
Company all such information, which was obtained by Mahaska in written form, in
their possession.
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Section 4.9. Lists of Company Stockholders. Upon Mahaska's request from time
to time, for the purpose of giving effect to the Merger as provided for herein,
the Company shall deliver to Mahaska such lists of the holders of record of the
outstanding Company Stock as of the respective dates which Mahaska shall
designate, and the accuracy of each such list shall be certified by an
authorized officer of the Company.
Section 4.10. Continuing Effect of Representations and Warranties. Except as
contemplated by this Agreement, each of the parties agrees not to knowingly
enter into, or knowingly agree to enter into, any transaction or perform, or
knowingly agree to perform, any act which would result in any of the
representations or warranties on the part of such party not being true and
correct in all material respects at and as of the time immediately after the
occurrence of any such transaction or event or immediately before the Effective
Time or that would be likely to cause any condition set forth in this Agreement
not to be satisfied or otherwise jeopardize the consummation of the transactions
contemplated hereby.
Section 4.11. Current Information. During the period from the date hereof to
the Effective Time, the Company will cause one or more of its representatives to
confer on a regular and frequent basis with representatives of Mahaska and to
report the general status of the ongoing operations of the Company and the
Company Subsidiaries. The Company will promptly notify Mahaska of (i) any
material change in the normal course of its business or the business of any of
the Company Subsidiaries or in the operation of its properties or the properties
of any of the Company Subsidiaries; (ii) any complaints, investigations or
hearings (or communications indicating that the same may be contemplated) of any
governmental entity; (iii) the institution or the threat of material litigation
involving the Company or any of the Company Subsidiaries; or (iv) any event or
condition that might reasonably be expected to cause any of the Company's
representations or warranties set forth herein not to be true and correct in all
material respects, or cause the Company not to be in full compliance with any of
its covenants set forth herein, as of the Effective Time. As used in the
preceding sentence, "material litigation" shall mean any case, arbitration or
other adversary proceeding or other matter which would have been required to be
disclosed on Schedule 2.11 pursuant to Section 2.11 hereof if in existence on
the date hereof or in respect of which the legal fees and other costs of the
Company or any of the Company Subsidiaries might reasonably be expected to
exceed $50,000.00 over the entire life of such matter. The Company shall also
promptly notify Mahaska of any adverse development involving any matter
disclosed on Schedule 2.11 in response to Section 2.11 hereof which shall occur
after the date hereof and which might reasonably be expected to increase the
financial exposure of the Company or any of the Company Subsidiaries thereof in
an amount exceeding $50,000.00 and in any event the Company shall regularly
advise Mahaska of significant changes in the status of any such matters.
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Section 4.12. Termination Payment. (a) If this Agreement is terminated
pursuant to its terms, other than by both parties pursuant to Section 9.2(a)(i)
hereof, by the Company or Mahaska pursuant to Section 9.2(a)(ii) hereof, by
failure of Mahaska's shareholders' to approve the Merger for any reason or by
the failure of the shareholders of the Company to adopt this Agreement where
prior to the vote by the Company shareholders the Board of Directors of the
Company maintains its favorable recommendation for shareholders to adopt this
Agreement and there was no intervening public announced third party offer to
acquire the Company or the Bank, by Mahaska pursuant to clause (B) or (D) of
Section 9.2(a)(iii), by the Company pursuant to Section 9.2(a)(iv) or by either
party pursuant to Section 9.2(a)(v) hereof, and an Acquisition Event shall occur
within 18 months after the date of such termination, the Company shall pay to
Mahaska within two business days after the occurrence of such Acquisition Event,
by wire transfer of immediately available Federal funds to such account as
Mahaska shall designate, the greater of (i) $500,000.00 and (ii) an amount equal
to the sum of (A) out-of-pocket expenses (and the allocated cost of its in-house
legal and accounting departments) incurred by Mahaska in connection with the
transactions contemplated hereby and (B) 2.5% of the Aggregate Value of the
Acquisition Event.
(b) For purposes of this Section 4.12, the "Aggregate Value" of any
Acquisition Event shall be the sum of (i) the product of (A) the average
consideration paid or payable per share of Company Common Stock in connection
with such Acquisition Event and (B) the number of such shares of Company Common
Stock outstanding immediately prior to such Acquisition Event plus (ii) the
value of any consideration received or receivable by the Company in exchange for
any shares of its capital stock or other securities in connection with such
Acquisition Event.
(c) For purposes of this Section 4.12, the term "Acquisition Event" shall
mean any of the following: (i) any person or entity (other than Mahaska or a
parent corporation or subsidiary thereof) shall have acquired pursuant to a
tender offer or otherwise beneficial ownership of shares of the Company Common
Stock representing 25% or more of the outstanding shares of the Company Common
Stock; or (ii) the Company shall have entered into an agreement with any person
or entity (other than Mahaska or a parent corporation or subsidiary thereof) to
(A) effect a merger, consolidation or similar transaction in which the Company
or the Bank is the non-surviving entity, (B) sell, lease or otherwise dispose of
assets of the Company or any Company Subsidiary representing 15% or more of the
consolidated assets of the Company and the Company Subsidiaries, or (C) issue,
sell or otherwise dispose of (including by way of merger, consolidation, share
exchange or any similar transaction) securities representing 10% or more of the
voting power of the Company or the Bank.
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(d) If the shareholders of Mahaska fail to approve the Merger for any reason
after Mahaska has received an offer from a third party to purchase its stock or
a substantial portion of its assets through tender offer, merger, or otherwise
(the "Offer") and the Offer is approved by Mahaska's Board of Directors, Mahaska
shall pay to the Company upon consummation of the transaction resulting from the
Offer, the amount of $500,000 by wire transfer of immediately available federal
funds to such account as the Company shall designate and also pay to any Company
employees, the amounts that would otherwise be paid on the date of Closing (as
defined herein) to such employees pursuant to the Employment Contracts referred
to in Section 6.12 hereof.
(e) If the Board of Directors of Mahaska fails to maintain its favorable
recommendation of this Agreement and the Merger to the Mahaska shareholders or
in any manner adversely changes such recommendation or withdraws such
recommendation, and the shareholders of Mahaska fail to approve the Merger, and
a Mahaska Acquisition Event (as hereinafter defined) shall occur within 18
months after the termination of this Agreement, Mahaska shall pay to the Company
within two days after the occurrence of such Mahaska Acquisition Event, by wire
transfer of immediately available federal funds to such account as the Company
shall designate, the amount of $500,000 and Mahaska shall also pay on such date
to any Company employees, the amounts that would have been paid on the date of
Closing under this Agreement to such employees pursuant to Employment Contracts
referred to in Section 6.12 hereof, "Mahaska Acquisition Event" shall have the
same meaning as "Acquisition Event" except Mahaska shall be substituted for the
Company and vice versa and a Mahaska Subsidiary that is a financial institution
shall be substituted for the Bank.
(f) In the event that a party hereto pursues any remedy against the other
party hereto for damages under Section 9.2(b)(i), it shall not be entitled to
any termination fee pursuant to the provisions of this Section 4.12.
Section 4.13. Reasonable Efforts. Subject to Section 2.25 hereof, each of
the parties hereto agrees to use all reasonable efforts to take, or cause to be
taken, all action, and to do, or cause to be done, all things necessary, proper
or advisable under and in compliance with applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement as
expeditiously as reasonably practicable.
Section 4.14. Letter of Company's Accountants. The Company shall use all
reasonable efforts to cause to be delivered to Mahaska letters of KPMG Peat
Marwick LLP, the Company's independent auditors, dated a date within two
business days before the date on which the Proxy Statement/Prospectus shall
become effective and two business days before the Closing Date and addressed to
Mahaska, in form and substance reasonably satisfactory to Mahaska, and in scope
and substance consistent with applicable professional standards for letters
delivered by independent public accountants in connection with registration
statements similar to the Proxy Statement/Prospectus.
Section 4.15. Letter of Mahaska's Accountants. Mahaska shall use all
reasonable efforts to cause to be delivered to the Company letters of KPMG Peat
Marwick LLP, Mahaska's independent auditors, dated a date within two business
days before the date on which the Proxy Statement/Prospectus shall become
effective and two business days before the Closing Date and addressed to the
Company, in form and substance reasonably satisfactory to the Company, and in
scope and substance consistent with applicable professional standards for
letters delivered by independent public accountants in connection with
registration statements similar to the Proxy Statement/Prospectus.
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Section 4.16. Affiliates. As soon as practicable after the date of this
Agreement, the Company shall deliver to Mahaska a letter, reviewed by its
counsel, identifying all persons whom the Company believes to be "affiliates" of
the Company for purposes of Rule 145 under the Securities Act or for purposes of
qualifying for pooling of interests accounting treatment for the Merger. The
Company shall use its best efforts to cause each person who is so identified as
an "affiliate" to deliver to Mahaska as soon as practicable thereafter, a
Company Affiliate Agreement, providing that each such person will agree not to
sell, pledge, transfer or otherwise dispose of, or reduce risk with respect to,
any shares of stock of the Company held by such person or any shares of Mahaska
Common Stock to be received by such person in the Merger (i) during the period
commencing 30 days prior to the Effective Time and ending at the time of
publication of financial results covering at least 30 days of combined
operations after the Merger and (ii) at any time, except in compliance with the
applicable provisions of the Securities Act and other applicable laws and
regulations. Prior to the Effective Time, the Company shall amend and supplement
such letter and use its best efforts to cause each additional person who is
identified as an "affiliate" to execute a written agreement as set forth in this
Section 4.16. Mahaska shall use all reasonable efforts to cause each director,
executive officer, and other person who is an "affiliate" (for qualifying the
Merger for pooling-of-interests accounting treatment) of Mahaska, as soon as
practicable after the date of this Agreement, execute and deliver a written
agreement (a "Mahaska Affiliate Agreement"), under which such affiliate agrees
not to sell, pledge, transfer, or otherwise dispose of, or reduce risk with
respect to, his or her Mahaska Common Stock during any period that any such
action would, under general accepted accounting principles or the rules,
regulations, or interpretations of the SEC or its staff, disqualify the Merger
for pooling-of-interests for accounting purposes. For the benefit of the
affiliates of the Company, Mahaska shall publish at the earliest opportunity,
but not later than sixty (60) days after the Effective Time, combined financial
results covering the first thirty (30) days after the Effective Time so as to
permit affiliates of the Company and Mahaska to sell shares of Mahaska Common
Stock immediately after such publication under the rules applicable to pooling
of interests accounting treatment.
Section 4.17. Company Accruals and Reserves. Immediately prior to the
Effective Time, the Company shall, to the extent consistent with generally
accepted accounting principles and the accounting rules, regulations and
interpretations of the SEC and its staff, modify and change its loan, accrual
and reserve policies and practices (including loan classifications, increase the
Company's allowance for loan losses by $400,000.00 plus the "Year End Due
Diligence Amount" over the amount set forth on the Disclosure Statement as of
September 18, 1998, levels of other reserves and accruals and asset disposition
strategies to (i) reflect Mahaska's plans with respect to the conduct of the
Company's business following the Merger and (ii) make adequate provision for the
costs and expenses relating thereto) so as to be applied consistently on a
mutually satisfactory basis with those of Mahaska; provided, however, that the
Company shall not be obligated to take in any respect any such action pursuant
to this Section 4.17 unless and until Mahaska acknowledges that all conditions
to its obligation to consummate the Merger have been satisfied.
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Section 4.18. Benefit Plans. (a) Prior to the Effective Time, the Company
and each Company Subsidiary as the sponsoring employer under those employee
welfare benefit plans, employee pension benefit plans, fringe benefit
arrangements and all other benefit programs (collectively, the "Company Plans")
with respect to which the Company or any of its Subsidiaries is a sponsoring
employer immediately prior to the Effective Time, shall adopt resolutions to
cancel and terminate all Company Plans except those set forth on Schedule
4.18(a), effective as of the Effective Time so long as vested rights and
benefits are not disturbed. Except as set forth on Schedule 4.18(a) or expressly
contemplated by a separate agreement entered into by the Company and Mahaska on
the date hereof, each Company Plan shall be cancelled and terminated by the
Company or an applicable Company Subsidiary prior to the Effective Time without
any liability or obligation of Mahaska or its subsidiaries hereafter.
(b) At or as promptly as practicable after the Effective Time, Mahaska shall
provide, or cause an appropriate Mahaska Subsidiary to provide, as eligible in
accordance with such plans, to each employee of the Company, and its
wholly-owned Subsidiaries as of the Effective Time ("Company Employees") the
opportunity to participate in each employee benefit and welfare plan (including
but not limited to employee welfare benefit plans, employee pension benefit
plans and fringe benefit arrangements) maintained by Mahaska or an appropriate
Mahaska Subsidiary, whichever is applicable, for similarly-situated employees
provided that with respect to such plans maintained by Mahaska or a Mahaska
Subsidiary, whichever is applicable, Company Employees shall be given full
credit for their service with the Company and its Subsidiaries in determining
participation in, eligibility for and vesting in benefits thereunder, and only
with respect to severance and vacation plans, accrual of benefits; provided
further, that except as specifically set forth in Section 4.18(c) hereinbelow
Company Employees may be subject to any waiting periods or preexisting condition
exclusions under the group health plan of Mahaska or any applicable Mahaska
Subsidiary to the extent that such periods are longer or restrictions impose a
greater limitation than the periods or limitations imposed under the applicable
group health plan of the Company or an applicable Company Subsidiary; and
provided further, that to the extent that the initial period of coverage for
Company Employees under any plan of Mahaska or a Mahaska Subsidiary, whichever
is applicable, that is an employee welfare benefit plan is not a full 12-month
period of coverage, Company Employees shall be given credit under the applicable
welfare plan for any deductibles and co-insurance payments made by such Company
Employees under the corresponding welfare plan of the Company or an applicable
Company Subsidiary during the balance of such 12-month period of coverage.
Nothing in the preceding sentence shall obligate Mahaska or any Mahaska
Subsidiary to provide or cause to be provided any duplicative or equivalent
benefits as those provided under any Company Plan that is continued by Mahaska
or a Mahaska Subsidiary. Moreover, this subsection 4.18(b) shall not constitute
a contract of employment or create any rights of a Company Employee to be
retained in employment at Mahaska or any Mahaska Subsidiary.
(c) Any separate agreement entered into by the Company and Mahaska on the
date hereof relating to employee or director benefits is incorporated herein by
reference and shall be deemed a part of this Agreement.
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Section 4.19. Directors' and Officers' Indemnification Insurance. Mahaska
agrees that the Merger shall not affect or diminish any of the Company's or the
Company Subsidiaries' duties and obligations of indemnification existing
immediately prior to the Effective Time in favor of the directors, officers,
employees and agents of the Company or the Company Subsidiaries arising by
virtue of the Certificate, Charter or Bylaws of the Company or the Company
Subsidiaries in the form in effect at the date of this Agreement or arising by
operation of law, and such duties and obligations shall continue in full force
and effect for so long as they would (but for the Merger) otherwise survive and
continue in full force and effect, provided however, the Company shall take all
action required by Mahaska prior to the Effective Time to put in place a "tail
coverage" policy or similar policy with its present liability insurer. All
provisions for indemnification and limitation of liability now existing in favor
of the directors or officers of the Company, or the Company Subsidiaries, as
provided by law or regulation or in their respective Certificate of
Incorporation or Charter shall survive the Merger, shall be assumed by Mahaska
and shall continue in full force and effect with respect to acts or omissions
occurring prior to the Effective Time for a period of three years thereafter or
in the case of matters occurring prior to the Effective Time for a period of
three years thereafter or in the case of matters occurring prior to the
Effective Time which have not been resolved prior to the third anniversary of
the Effective Time, until such matters are finally resolved. To the extent
permitted by law, its Articles of Incorporation and By-laws, Mahaska shall
advance expenses in connection with the foregoing indemnification. The
indemnified persons under this Section 4.19 shall be third party beneficiaries
of the provisions of this Section 4.19.
Section 4.20. Dividend Coordination. After February 17, 1999, the Board of
Directors of the Company shall cause its regular quarterly dividend record dates
and payment dates for Company Common Stock to be the same as Mahaska's regular
quarterly dividend record dates and payment dates for Mahaska Common Stock
(e.g., the Company shall move its next dividend record dates from May 5, 1999
and August 4, 1999 to June 8, 1999 and September 8, 1999, and payment dates from
May 19, 1999, and August 18, 1999, to June 15, 1999 and September 15, 1999,
respectively), and the Company shall not thereafter change its regular dividend
payment dates and record dates.
Section 4.21. Access and Information. Mahaska shall, and shall cause each
Mahaska Subsidiary to afford to the Company, its directors, officers, employees,
accountants, counsel and other representatives (hereinafter referred to as the
"Company Representatives") access to the properties, assets, books, contracts,
returns, reports and records of Mahaska and the Mahaska subsidiaries and Mahaska
shall, and shall cause its Subsidiaries to, furnish to the Company such other
information concerning the respective businesses, properties and personnel of
Mahaska and each of its Subsidiaries as the Company may reasonably request. The
Company shall keep confidential, and shall cause the Company Representatives to
keep confidential, any such information so obtained from Mahaska and its
Subsidiaries; provided, however, that the foregoing restriction shall not apply
to any such information which is or comes into the public domain otherwise than
as a result of a breach of the provisions of this Section, was in the possession
of the Company or any Company Representative prior to the negotiations with
Mahaska relating to this Agreement or at any time comes into the possession of
the Company or any Company Representative from third parties who have the right
to disclose such information otherwise than in connection with this Agreement.
In the event that this Agreement is terminated without the Merger having been
consummated, the Company shall, and shall cause the Company Representatives to,
return promptly to Mahaska all such information, which was obtained by the
Company in written form, in their possession.
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Section 4.22. Current Information. During the period from the date hereof to
the Effective Time, Mahaska will cause one or more of its representatives to
confer on a regular and frequent basis with representatives of the Company and
to report the general status of the ongoing operations of Mahaska and its
subsidiaries. Mahaska will promptly notify the Company of (i) any material
change in its business or the business of any of its Subsidiaries or in the
operation of its properties or the properties of any of its Subsidiaries; (ii)
any complaints, investigations or hearings (or communications indicating that
the same may be contemplated) of any governmental entity; (iii) the institution
or the threat of material litigation involving Mahaska or any of its
Subsidiaries; or (iv) any event or condition that might reasonably be expected
to cause any of Mahaska's representations or warranties set forth herein not to
be true and correct in all material respects, or cause Mahaska not to be in full
compliance with any of its covenants set forth herein, as of the Effective Time.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF
MAHASKA AND THE COMPANY
The obligations of Mahaska and the Company to effect the Merger are subject
to the satisfaction of the following conditions precedent:
Section 5.1. Company Stockholder Approval. This Agreement and the Merger
shall have been duly approved and adopted by the requisite vote of the
stockholders of Mahaska and the shareholders of the Company under applicable
law.
Section 5.2. Regulatory Approvals and Legal Requirements. All approvals and
consents required by law to be received in connection with the Merger, including
(without limitation) the approvals of the FRB, the Commissioner, and the OTS
referred to in Section 4.1 hereof, shall have been received, without the
imposition of any non-standard regulatory conditions that would be unduly
burdensome to the Surviving Corporation and such approvals and consents shall be
in effect, and all conditions or requirements prescribed by any such approval or
consent (or by law in connection therewith) shall have been satisfied. All other
requirements prescribed by law which are necessary to the lawful consummation of
the Merger shall have been satisfied.
Section 5.3. Securities Act Registration, Blue Sky Registration or Exemption
and Nasdaq Listing. The shares of Mahaska Common Stock to be issued to the
Company's shareholders pursuant to this Agreement shall have been registered
with the SEC under the Securities Act by means of an effective registration
statement, shall have been registered under or shall be exempt from registration
under all applicable state securities or blue sky laws, and shall have been
approved for listing, upon official notice of issuance, on Nasdaq.
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Section 5.4. Pooling of Interests Opinion and Tax Opinion. Mahaska and the
Company shall have received opinions from KPMG Peat Marwick LLP, in form and
substance satisfactory to both parties, with respect to pooling of interests
accounting treatment and tax-free reorganization federal taxation treatment,
which opinion shall be effective and shall not have been withdrawn or modified
in any material respect.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATION OF MAHASKA
The obligation of Mahaska to effect the Merger is subject to the
satisfaction of the following further conditions precedent, unless waived in
writing by Mahaska:
Section 6.1. Representations, Warranties and Covenants. The representations
and warranties of the Company contained in Article II of this Agreement shall be
true and accurate in all material respects as of the date hereof and, except as
set forth in an Updated Disclosure Statement or as otherwise contemplated by
this Agreement, as of the time immediately prior to the Effective Time as though
made on and as of such time, and the Company shall have duly performed and
complied with, in all material respects, all agreements, covenants and
conditions required by this Agreement to be performed or complied with by it.
The Company shall have delivered to Mahaska a certificate dated the day of the
Effective Time and signed by an authorized officer of the Company to the effect
set forth in the first sentence of this Section.
Section 6.2. Adverse Changes. There shall have been no changes after
December 31, 1997, in the results of operations, condition (financial or
otherwise), properties, assets or business of the Company or any of the Company
Subsidiaries, which has resulted in or is expected to result in a Material
Adverse Effect on the Company and the Company Subsidiaries, except for any such
change that is solely attributable to a change, following the date of this
Agreement, due to conforming reporting, or in the laws or economic conditions
affecting the banking industry as a whole. The Company shall have delivered to
Mahaska a certificate dated the day of the Effective Time and signed by an
authorized officer of the Company to the effect set forth in the first sentence
of this Section.
Section 6.3. Litigation. No litigation, proceeding or investigation shall be
pending or threatened, and no order, notice or regulation of any court or
governmental agency shall be in effect with respect to the Company or any
Company Subsidiary, which restrains or prohibits, or which seeks to restrain or
prohibit or obtain damages or other relief in connection with or in any way
relating to, the consummation of the Merger.
Section 6.4. Additional Due Diligence Period. The parties hereto
acknowledge that, Mahaska shall have the opportunity to complete its due
diligence review of the Company and the Company Subsidiaries year end loan
files. Mahaska will initiate a pre-acquisition investigation and review of the
year end loan files of the Company and the Company Subsidiaries on March 1,
1999, and will complete such pre-acquisition investigation during the 20-day
period following such date (hereinafter said 20-day period is referred to as the
"Year End Loan File Due Diligence Period"). In the event that such
pre-acquisition investigation and review discloses any matter (including,
without limitation, any matter existing on or prior to the date of this
Agreement), which (in Mahaska's opinion) is inconsistent in any material respect
with any of the representations and warranties of the Company contained in this
Agreement or might materially and adversely affect either the reasonably
expected financial or business benefits to Mahaska of the Merger or the results
of operations, condition (financial or otherwise) or business of the Company,
the Bank or the Surviving Corporation, Mahaska may elect to require the Company
to increase its Loan Loss Reserves by the "Year End Due Diligence Amount," in
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its reasonable discretion, immediately prior to Closing and after all conditions
in Articles V-VII have been satisfied or waived, provided, however, such
adjustment shall constitute a "conforming reporting change" pursuant to Section
6.2.
Section 6.5. Dissenting Company Stock. The aggregate number of shares of
Dissenting Company Stock shall not exceed eight (8%) of the Company Common Stock
outstanding (assuming all Company stock options have been converted) immediately
prior to the Effective Time. The Company shall have delivered to Mahaska a
certificate dated the day of the Effective Time and signed by an authorized
officer of the Company to the effect set forth in the first sentence of this
Section.
Section 6.6. Accountants' Letters. Mahaska shall have received the
accountants' letters contemplated by Section 4.15 hereof.
Section 6.7. Environmental Assessments. Mahaska shall have received the
Environmental Assessments required to be delivered pursuant to Section 2.9(f)
hereof in form and substance reasonably satisfactory to Mahaska.
Section 6.8. Opinion of the Company's Counsel. Mahaska shall have received
the opinion of Silver, Freedman & Taff, L.L.P., counsel to the Company, dated
the day of the Effective Time, addressed to Mahaska and substantially to the
effect set forth in Exhibit C attached hereto and hereby made a part hereof.
Section 6.9. Legal Matters. All legal matters in connection with this
Agreement and the Merger shall have been approved by counsel for Mahaska, and
there shall have been furnished to such counsel by the Company certified copies
of such corporate records of the Company and each of the Company Subsidiaries
and copies of such other documents as such counsel may reasonably have requested
for such purpose.
Section 6.10. Updated Disclosure Statement. The Company shall have delivered
to Mahaska immediately prior to the Effective Time an updated Disclosure
Statement which clearly indicates all changes in the information that was
originally contained therein and on any Schedule hereto and which contains such
information as shall be necessary to make all of the representations and
warranties of the Company true and accurate as of the time immediately prior to
the Effective Time, and which updated Disclosure Statement and Schedules does
not disclose any new information which Mahaska determines in good faith has
resulted in or is expected to result in a Material Adverse Effect on the Company
and the Company Subsidiaries.
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Section 6.11. Nonperformance and Materially Impaired Assets. The aggregate
amount of all Non-Performing and Materially Impaired Assets on the books of the
Company and the Company Subsidiaries shall not exceed 2.0% of the gross amount
of all loans on the books of the Company and the Company Subsidiaries.
Section 6.12. Employment Agreements. A Mahaska Subsidiary shall have entered
into employment agreements satisfactory to Mahaska in the form of Exhibit D
attached hereto and hereby made a part hereof, with such of the employees of the
Company and the Company Subsidiaries who shall have been designated by Mahaska,
who shall have cancelled and terminated their current employment agreements.
Section 6.13. Affiliate Agreements. Mahaska shall have received from each
person who has been identified by the Company to Mahaska as an "affiliate,"
pursuant to Section 4.16 hereof, a signed "Affiliates" agreement as contemplated
by such Section.
Section 6.14. Fairness Opinion. Howe Barnes Investments, Inc. shall have
delivered to the Board of Directors of Mahaska, as of the date of this
Agreement, its opinion to the effect that the consideration to be received in
the Merger is fair, from a financial point of view, to the stockholders of
Mahaska, and such opinion shall not have been withdrawn, amended or modified in
any material respect at or prior to the Closing.
Section 6.15. Company Costs Paid. The Company shall have delivered to
Mahaska a certificate dated the day of the Effective Time and signed by an
authorized officer of the Company to the effect that all transaction costs of
the Company described in Section 10.3 herein, including, but not limited to, its
attorneys, investment bankers and accountants has been paid in full without
liability or obligation to Mahaska or its Subsidiaries.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY
The obligation of the Company to effect the Merger is subject to the
satisfaction of the following further conditions precedent, unless waived in
writing by the Company:
Section 7.1. Representations, Warranties and Covenants. The representations
and warranties of Mahaska contained in Article III of this Agreement shall be
true in all material respects as of the date hereof and, except as otherwise
contemplated by this Agreement, as of the time immediately prior to the
Effective Time as though made on and as of such time, and Mahaska shall have
duly performed and complied with, in all material respects, all agreements,
covenants and conditions required by this Agreement to be performed or complied
with by it. Mahaska shall have delivered to the Company a certificate dated the
day of the Effective Time and signed by an authorized officer of Mahaska to the
effect set forth in the first sentence of this Section.
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Section 7.2. Opinion of Counsel to Mahaska. The Company shall have received
the opinion of Chapman and Cutler, counsel to Mahaska, dated the day of the
Effective Time, addressed to the Company and substantially to the effect set
forth in Exhibit E attached hereto.
Section 7.3. Accountants' Letters. The Company shall have received the
accountants' letters contemplated by Section 4.16 hereof.
Section 7.4. Legal Matters. All legal matters in connection with this
Agreement and the Merger shall have been approved by counsel for the Company,
and there shall have been furnished to such counsel by Mahaska certified copies
of such corporate records of Mahaska and copies of such other documents as such
counsel may reasonably have requested for such purpose.
Section 7.5. Reserved.
Section 7.6. Fairness Opinion. Charles Webb & Company shall have delivered
to the Board of Directors of the Company as of the date of this Agreement, its
opinion to the effect that the consideration to be received in the Merger is
fair, from a financial point of view, to the stockholders of the Company, and
such opinion shall not have been withdrawn, amended or modified in any material
respect at or prior to the Closing.
Section 7.7. Adverse Changes. There shall have been no changes after
December 31, 1997, in the results of operations, condition (financial or
otherwise), properties, assets or business of Mahaska or any of the Mahaska
Subsidiaries, which has resulted in or is expected to result in a Material
Adverse Effect on Mahaska and the Mahaska Subsidiaries, except for any such
change that is solely attributable to a change, following the date of this
Agreement, due to conforming reporting, or in the laws or economic conditions
affecting the banking industry as a whole. Mahaska shall have delivered to the
Company a certificate dated the day of the Effective Time and signed by an
authorized officer of Mahaska to the effect set forth in the first sentence of
this Section.
Section 7.8. Litigation. No litigation, proceeding or investigation shall be
pending or threatened, and no order, notice or regulation of any court or
governmental agency shall be in effect with respect to Mahaska or any Mahaska
Subsidiary, which restrains or prohibits, or which seeks to restrain or prohibit
or obtain damages or other relief in connection with or in any way relating to,
the consummation of the Merger.
ARTICLE VIII
CLOSING
Section 8.1. Date, Time and Place of Closing. The closing in respect of the
Merger (herein referred to as the "Closing") shall be held at the offices of
Chapman and Cutler, 111 West Monroe Street, Chicago, Illinois, at 9:00 A.M.,
Chicago time, on such date, not later than the last day of the month following
the satisfaction or waiver of all conditions to closing set forth in Articles V,
VI and VII, as Mahaska shall designate by at least ten days' prior written
notice to the Company, which date (unless otherwise mutually agreed by Mahaska
and the Company) shall be the day of the Effective Time.
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Section 8.2. Deliveries of Documents. At the Closing, the certificates and
other documents required to be delivered by this Agreement shall be delivered.
Section 8.3. Merger to Be Made Effective. At the Closing, subject to the
terms and conditions of this Agreement, Mahaska and the Company shall instruct
their respective representatives to make or confirm such filings (including,
without limitation, the filing with the Secretary of State of the State of Iowa
of the Articles of Merger, the filing with the Secretary of State of the State
of Delaware of the Certificate of Merger, each properly executed on behalf of
Mahaska and the Company and otherwise in the form contemplated by the Delaware
General Corporation Law and the Iowa Act), and to take all such other actions,
as shall be required to give effect to the Merger.
ARTICLE IX
AMENDMENT AND TERMINATION
Section 9.1. Amendment. This Agreement may be amended by the parties hereto,
with the approval of their respective Boards of Directors, at any time prior to
the Effective Time, whether before or after approval hereof by the shareholders
of Mahaska or the shareholders of the Company, but, after such approval by the
shareholders of Mahaska and the Company, no amendment shall be made without the
further approval of such shareholders which (i) alters or changes the amount or
kind of consideration to be received by the shareholders of the Company in
exchange for or on conversion of all or any of the shares of the capital stock
of the Company as a result of the Merger; (ii) alters or changes any term of the
certificate of incorporation of the Surviving Corporation provided for by this
Agreement; or (iii) adversely affects such shareholders (or, in the case of the
Company's shareholders, the tax treatment of the Merger). This Agreement may not
be amended except by an instrument in writing signed on behalf of each of the
parties hereto.
Section 9.2. Termination. (a) This Agreement may be terminated at any time
prior to the Effective Time, whether before or after approval of this Agreement
by Mahaska or the stockholders of the Company:
(i) by mutual consent in writing of Mahaska and the Company (with the
approval of their respective Boards of Directors); or
(ii) by Mahaska (with the approval of its Board of Directors) or by the
Company (with the approval of its Board of Directors), by giving written
notice of such termination to the other party if, upon the taking of the
vote of the shareholders of the Company or Mahaska contemplated by Sections
4.2 and 4.4 hereof, the required approval of such shareholders shall not be
obtained; or
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(iii) by Mahaska (with the approval of its Board of Directors), by
giving written notice of such termination to the Company, (A) if there has
been (I) a material breach of any agreement herein on the part of the
Company which has not been cured or adequate assurance of cure given, in
either case within five business days following notice of such breach from
Mahaska, or (II) a material breach of a representation or warranty of the
Company herein which, in the opinion of Mahaska, by its nature cannot be
cured within 30 days, (B) if Mahaska determines at any time that any
regulatory approval or consent required by law to be received in connection
with the Merger is unlikely to be received or is unlikely to be received in
time to permit the lawful consummation of the Merger by the date specified
in Section 9.2(a)(vi) hereof or (C) if any acquisition or purchase of all or
a substantial portion of the assets of, or a substantial equity interest in,
the Company or the Bank, or any merger, consolidation or other business
combination with the Company or the Bank, other than as contemplated by this
Agreement, or any tender or exchange offer intended to effect any such
transaction, shall have been proposed (and such proposal is not opposed in
writing by the Company within two business days after the Company or the
Bank shall have first received or become aware of such proposal, pursuant to
a resolution authorizing and directing opposition to such proposal duly
adopted by the Company's Board of Directors, or the Company or its Board of
Directors at any time shall cease to oppose such proposal or shall take, or
permit the Bank to take, any action which is not consistent with opposition
to such proposal) or shall have been publicly announced, commenced, agreed
to or consummated or (D) if there shall have occurred or been proposed,
after the date of this Agreement, any change in any law, rule or regulation,
or after the date of this Agreement there shall have been any decision or
action by any court, government or governmental agency (including, without
limitation, any bank regulatory authority) that could reasonably be expected
to prevent or materially delay consummation of the Merger or that could
reasonably be expected to have a Material Adverse Effect on the prospects of
the Company, the Bank or the Surviving Corporation; or
(iv) by the Company (with the approval of its Board of Directors), by
giving written notice of such termination to Mahaska, if there has been (A)
a material breach of any agreement herein on the part of Mahaska which has
not been cured or adequate assurance of cure given, in either case within
five business days following notice of such breach from the Company, or (B)
a material breach of a representation or warranty of Mahaska herein which,
in the opinion of the Company, by its nature cannot be cured within 30 days;
or
(v) by Mahaska (with the approval of its Board of Directors) or by the
Company (with the approval of its Board of Directors), by giving written
notice of such termination to the other party, if the Merger shall not have
been consummated on or before September 30, 1999; provided, however, that a
party that is in breach of any of any of the terms of this Agreement or any
of its obligations hereunder may not exercise a right of termination under
this subsection.
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(b) If this Agreement is properly terminated pursuant to Section 9.2(a), no
party to this Agreement shall have any further liability hereunder of any nature
whatsoever to the other party hereto; provided, however, that, notwithstanding
the foregoing, (i) this Section 9.2(b) shall not preclude liability from
attaching to a party who has caused the termination hereof by intentional breach
of a representation of warranty, a willful act or a willful failure to act in
violation of the terms and provisions hereof, and (ii) termination of this
Agreement shall not terminate or affect the agreements of the parties contained
in this Section 9.2(b), in Sections 4.8 and 4.21 hereof (with respect to
confidentiality), in Section 4.12 (with respect to a termination payment), or in
Section 10.3 hereof (with respect to the payment of certain expenses), the
provisions of all of which Sections shall survive any termination of this
Agreement. Notwithstanding anything contained herein to the contrary, the
parties hereto agree that irreparable damage will occur in the event that a
party breaches any of its obligations, duties, covenants and agreements
contained herein. It is accordingly agreed that the parties shall be entitled to
an injunction or injunctions to prevent breaches or threatened breaches of this
Agreement and to enforce specifically the terms and provisions of this Agreement
in any court of the United States or any state having jurisdiction, this being
in addition to any other remedy to which they are entitled by law or in equity.
ARTICLE X
GENERAL PROVISIONS
Section 10.1. Survival of Representations, Warranties and Agreements. The
agreements contained in Article I and Sections 4.18, 4.19 and 10.4 hereof (but
only to the extent such agreements relate to actions to be taken or matters to
occur after the Effective Time) shall survive the Merger. All other
representations, warranties and agreements contained in this Agreement and in
any certificate or other document delivered pursuant to this Agreement (other
than the Certificate of Merger) shall not survive the Merger.
Section 10.2. Notices. Each notice, request, demand, approval or other
communication which may be or is required to be given under this Agreement shall
be in writing and shall be deemed to have been properly given when delivered
personally at the address set forth below for the intended party during normal
business hours at such address, when sent by facsimile or other electronic
transmission to the respective facsimile transmission numbers of the parties set
forth below with telephone confirmation of receipt, or when sent by recognized
overnight courier or by the United States registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
(a) if to Mahaska, at: Mahaska Investment Company
222 First Avenue East
Oskaloosa, Iowa 52577
Attention: Charles S. Howard
with a copy to: Matthew C. Boba, Esq.
Chapman and Cutler
111 West Monroe Street
Chicago, Illinois 60603
(b) if to the Company, at: Midwest Bancshares, Inc.
3225 Division Street
Burlington, Iowa 52601
Attention: William D. Hassel
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with a copy to: Martin L. Meyrowitz, P.C.
Silver, Freedman & Taff, L.L.P.
1100 New York Avenue N.W.
Washington, DC 20005
Notices shall be given to such other addressee or address, or both, or by way of
such other facsimile transmission number, as a particular party may from time to
time designate by written notice to the other party hereto. Each notice,
request, demand, approval or other communication which is sent in accordance
with this Section shall be deemed given and received for all purposes of this
Agreement as of two business days after the date of deposit thereof for mailing
in a duly constituted United States post office or branch thereof, one business
day after deposit with a recognized overnight courier service or upon
confirmation of receipt of any facsimile transmission. Notice given to a party
hereto by any other method shall only be deemed to be given and received when
actually received in writing by such party.
Section 10.3. Expenses and Certain Required Accruals. Whether or not the
Merger is consummated, each of Mahaska and the Company shall, and the Company
shall cause each of the Company Subsidiaries to, bear its own legal, accounting,
investment banking (including without limitation Charles Webb & Company), and
other expenses incurred in connection with this Agreement and the Merger. Such
expenses by the Company (excluding Charles Webb & Company) should not exceed
$300,000.00 in the aggregate. All filing and related fees to be paid to the SEC
and any regulatory authority in connection with the transactions contemplated by
this Agreement shall be borne by Mahaska.
Section 10.4. Further Assurances. From time to time after the Effective
Time, as and when requested by the Surviving Corporation and to the extent
permitted by law, the officers and directors of each of Mahaska and the Company
last in office shall execute and deliver such assignments, deeds and other
instruments and shall take or cause to be taken such further or other actions as
shall be necessary in order to vest or perfect in or to confirm of record or
otherwise to the Surviving Corporation title to and possession of, all of the
assets, rights, franchises and interests of each of Mahaska and the Company in
and to every type of property (real, personal and mixed) and things in action,
and otherwise to carry out the intent and purposes of this Agreement, and the
proper officers and directors of the Surviving Corporation are fully authorized
to take any and all such actions in the name of Mahaska or the Company or
otherwise.
Section 10.5. Publicity. Neither Mahaska nor the Company shall, nor shall
either of them permit its directors, officers, employees or agents to, issue or
cause the publication of any press release or other announcement with respect to
this Agreement or the Merger or otherwise make any disclosures relating thereto
to the press or any third party without the prior consent of the other party,
which consent shall not be unreasonably withheld; provided, however, that such
consent shall not be required where such release, announcement or disclosure is
required by applicable law or the rules or regulations of a securities exchange,
other self-regulatory authority or governmental agency (including, without
limitation, the rules and regulations of bank regulatory authorities with
respect to the publication of notice of the Merger in connection with the
applications for required approvals thereof).
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Section 10.6. Waivers. No waiver by any of the parties to this Agreement of
any condition, term or provision hereof shall be valid unless set forth in an
instrument in writing signed on behalf of such party, and no such waiver shall
be deemed a waiver of any preceding or subsequent breach of the same or any
other condition, term or provision of this Agreement.
Section 10.7. Entire Agreement and Binding Effect. This Agreement (i)
constitutes the entire agreement and supersedes all other prior agreements and
understandings, both written and oral, between the parties hereto with respect
to the subject matter hereof; (ii) shall be binding upon and inure for the
benefit of Mahaska and the Company and their respective successors and except as
provided in Section 4.19 or in the separate letter referenced to in Section
4.18(c), is not intended to confer upon any other person any rights or remedies
hereunder; and (iii) shall not be assigned or transferred by operation of law or
otherwise.
Section 10.8. Governing Law. This Agreement shall in all respects be
governed by and construed in accordance with the laws of the State of Iowa.
Section 10.9. Consent to Jurisdiction. Each of the parties hereby submits
to the exclusive jurisdiction of the Chancery Court of the State of Iowa and the
Federal courts of the United States of America located in Iowa in respect of the
transactions contemplated by this Agreement, and hereby waives, and agrees not
to assert, as a defense in any action, suit or proceeding involving any of the
transactions contemplated by this Agreement, that it is not subject thereto or
that such action, suit or proceeding may not be brought or is not maintainable
in said courts or that this Agreement may not be enforced in or by said courts
or that its property is exempt or immune from execution, that the suit, action
or proceeding is brought in an inconvenient forum, or that the venue of the
suit, action or proceeding is improper.
Section 10.10. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to constitute an original, but all
of which together shall constitute one and the same instrument.
Section 10.11. Captions. The captions contained in this Agreement are for
reference purposes only and are not part of this Agreement.
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IN WITNESS WHEREOF, Mahaska and the Company have caused this Agreement to be
signed by their respective officers thereunto duly authorized, all as of the
date first written above.
MIDWEST BANCSHARES, INC.
Attest: By /s/ William D. Hassel
---------------------------
Its President & CEO
---------------------------
By Robert D. Maschmann
------------------------------
Its Executive Vice President & CFO
------------------------------
MAHASKA INVESTMENT COMPANY
Attest: By /s/ Charles S. Howard
---------------------------
Its Chairman & President
---------------------------
By David A. Meinert
------------------------------
Its Executive Vice President & CFO
------------------------------
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ATTACHED TO MERGER AGREEMENT PURSUANT TO
SECTION 252(C) OF THE DELAWARE GENERAL CORPORATION LAW
CERTIFICATE OF THE SECRETARY OF
THE COMPANY
I, ______________, Secretary of Midwest Bancshares, Inc., an Iowa
corporation ("Midwest"), hereby certify that the Merger Agreement dated as of
February 2, 1999, between Midwest and Mahaska Investment Company, an Iowa
corporation, to which this Certificate is attached, has been duly approved and
adopted by the holders of not less than a majority of the outstanding stock of
Midwest entitled to vote thereon, pursuant to the Certificate of Incorporation,
By-laws of Midwest and the Delaware General Corporation Law.
In Witness Whereof, I have hereunto set my hand, this ___ day of
____________, 19___.
Secretary as aforesaid
CERTIFICATE OF MERGER
OF
MIDWEST BANCSHARES, INC.
WITH AND INTO
MAHASKA INVESTMENT COMPANY
It is hereby certified that:
1. The business corporations participating in the merger herein certified
are:
(i) Mahaska Investment Company, which is incorporated under the laws of
the State of Iowa (hereinafter sometimes referred to as "Mahaska" and
sometimes referred to as the "Surviving Corporation"); and
(ii) Midwest Bancshares, Inc., which is incorporated under the laws of
the State of Delaware (hereinafter referred to as "Midwest" and sometimes,
together with Mahaska, as the "Constituent Corporations").
2. An Agreement and Plan of Merger (hereinafter referred to as the "Merger
Agreement") has been approved, adopted, certified, executed and acknowledged by
each of the Constituent Corporations in accordance with the provisions of
Section 252 of the General Corporation Law of the State of Delaware.
3. Pursuant to the terms of the Merger Agreement, Midwest shall be merged
with and into Mahaska, with Mahaska being the surviving corporation, in
accordance with the General Corporation Law of the State of Delaware
(hereinafter referred to as the "Merger").
4. The Merger shall become effective at ____________________ on _________
(hereinafter referred to as the "Effective Time").
5. The name of the Surviving Corporation in the Merger herein certified is,
and after the Effective Time shall continue to be, "Mahaska Investment Company"
until amended in accordance with the provisions of the General Corporation Law
of the State of Delaware.
6. At the Effective Time, the Certificate of Incorporation of Mahaska in
effect immediately prior to the Effective Time shall be the Certificate of
Incorporation of the Surviving Corporation until amended in accordance with the
provisions of the General Corporation Law of the State of Delaware.
EXHIBIT A
(to Merger Agreement)
7. The executed Merger Agreement between the Constituent Corporations is on
file at the principal place of business of the Surviving Corporation, the
address of which is as follows:
Mahaska Investment Company
222 First Avenue East
Oskaloosa, Iowa 52577
8. A copy of the Merger Agreement will be furnished by the Surviving
Corporation, on request and without cost, to any stockholder of each of the
Constituent Corporations.
Dated: ______________
MAHASKA INVESTMENT COMPANY
By
Its President and Chief Executive Officer
A-2
Form no. 15
ARTICLES OF MERGER
Of
MAHASKA INVESTMENT COMPANY
TO THE SECRETARY OF STATE OF THE STATE OF IOWA:
Pursuant to section 1105 of the Iowa Business Corporation Act, the
undersigned corporation adopts the following articles of merger:
1. See Agreement and Plan of Merger attached hereto and made a part hereof
2A. The designation, number of outstanding shares and the number of votes
entitled to be cast by each voting group entitled to vote separately on the plan
as to each corporation is as follows:
MIDWEST BANCSHARES, INC.
Votes Entitled to be Cast on
Designation of Group Shares Outstanding Amendment
-------------------- ------------------ ----------------------------
Common 1,098,523 1,098,523
MAHASKA INVESTMENT COMPANY
Votes Entitled to be Cast on
Designation of Group Shares Outstanding Amendment
-------------------- ------------------ ----------------------------
Common 3,636,345 3,636,345
2A.2. The total number of undisputed votes cast for the plan by each voting
group was:
MIDWEST BANCSHARES, INC.
Voting Group Votes For
----------- ---------
Common
MAHASKA INVESTMENT COMPANY
Voting Group Votes For
------------ ---------
Common
The number of votes cast for the plan by each voting group was sufficient for
the approval by that voting group.
The effective date and time of this document is:
[date]
[time]
MAHASKA INVESTMENT COMPANY
By
--------------------------------
Its
--------------------------------
EXHIBIT B
(to Merger Agreement)
EXHIBIT C
OPINION OF COUNSEL TO MIDWEST
__________________, 1999
Midwest Bancshares, Inc. Mahaska Investment Company
Burlington, Iowa Oskaloosa, Iowa
Re: Agreement and Plan of Merger by and between Mahaska Investment Company and
Midwest Bancshares, Inc.
Ladies and Gentlemen:
We have acted as counsel to Midwest Bancshares, Inc., a Delaware corporation
("Seller"), in connection with the acquisition (the "Acquisition") by Mahaska
Investment Company, an Iowa Corporation ("Mahaska"), of Seller, pursuant to the
Agreement and Plan of Merger, dated February 2, 1999 (the "Agreement"), by and
between Mahaska and the Seller. We render this opinion pursuant to Section 6.8
of the Agreement.
In connection with this opinion, we have examined (i) the Agreement; (ii)
respectively, the Certificate of Incorporation, Charter, and Bylaws of Seller
and Midwest Federal Savings and Loan Association of Eastern Iowa (the "Bank");
(iii) certain resolutions of the Boards of Directors of Seller and the Bank;
(iv) certificates from public officials as to the existence and good standing of
Seller and the Bank under the laws of the place of their incorporation; (v)
certificates of officers of Seller, (vi) the Prospectus; and (vii) certificates
and other documents delivered by the respective parties to the Agreement on or
prior to the Closing.
As to all matters of fact (including factual conclusions and
characterizations and descriptions of purpose, intention or other state of
mind), we have relied entirely upon (i) the representations of Seller and the
Bank set forth in the Agreement and (ii) certificates delivered to us by public
officials and by the management of Seller and the Bank, and we have assumed,
without independent inquiry, the accuracy of those representations and
certificates.
This opinion is based entirely on our review of the documents listed above
and we have made no other documentary review or investigation of any kind
whatsoever. We have assumed the genuineness of all signatures, the conformity to
the originals of all documents reviewed by us as copies, the authenticity and
completeness of all original documents reviewed by us in original or copy form
and the legal competence of each individual executing any document. No inference
as to our knowledge of the existence or absence of such facts should be drawn
from our representation of Seller or the Bank.
As used herein, the phrase "to our knowledge" refers to the conscious
awareness of facts by the attorneys in this firm who have been actively involved
in the transactions contemplated by the Agreement or the preparation of the
documents involved in this opinion letter.
Each opinion set forth below relating to the enforceability of any agreement
or instrument against Seller or the Bank is subject to the following general
qualifications:
(i) as to any instrument delivered by Seller or the Bank, we assume that
Seller or the Bank has received or will receive the agreed to consideration
therefor;
(ii) as to any agreement to which Seller or the Bank is a party, we
assume that such agreement is the binding obligation of each other party
thereto;
(iii) as to the Agreement, we assume that all terms, provisions and
conditions thereof, or relating thereto, are correctly and completely
reflected therein;
(iv) the enforceability of any obligation of Seller or the Bank may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, marshalling or other rules of law affecting the enforcement of
creditors' rights and remedies generally (including such as may deny giving
effect to waivers of debtors' or guarantors' rights) or general principles
of equity and judicial discretion;
(v) we assume that you, and any of your successors in interest, as the
case may be, will seek to enforce any of your rights in connection with the
Agreement only in circumstances and in a manner in which it is commercially
reasonable to do so; and
(vi) we express no opinion (1) that a course of dealing by you, or a
failure on your part to exercise, in whole or in part, a right or remedy
provided in the Agreement, shall not constitute a waiver of your rights or
remedies of any default under the Agreement; (2) as to the enforceability of
any provision or accumulation of provisions that may be deemed to be
unconscionable; (3) as to any antitrust, state securities or tax laws; (4)
as to provisions which purport to establish evidentiary standards; (5) as to
provisions relating to venue, governing law, waiver of remedies (or the
delay or omission of enforcement thereof), disclaimers or liability
limitations with respect to third parties; (6) as to the payment of any
liquidated damages by any party; (7) as to the payment of any interest,
charge or expenses to the extent that the same are determined to be
unenforceable penalties; (8) as to the payment of attorneys' and paralegals'
fees and other costs and expenses incurred in connection with enforcement of
the Agreement; (9) as to the exclusivity of the rights and remedies provided
under the Agreement to any party; (10) as to the cumulative nature of the
rights and remedies available to the parties under the Agreement and the
ability of such parties to exercise such rights and remedies in addition to
or with any other right or remedy; (11) as to the recourse to one or more
other remedies after a party to the Agreement has elected a particular
remedy or remedies; or (12) as to the enforceability of any requirement in
the Agreement or related documents specifying that provisions thereof may
only be waived in writing, to the extent that an oral agreement or an
implied agreement by trade practice or course of conduct has been created
modifying any provision of such Agreement or related documents.
We express no opinion as to the laws of any jurisdiction other than the laws
of the United States of America and the State of Delaware to the extent
specifically referred to herein. We assume no responsibility as to the
applicability or the effect of the laws of any other domestic or foreign
jurisdication on the subject transactions.
We understand that all of the foregoing assumptions and limitations are
acceptable to you.
Based upon and subject to the foregoing, we are of the opinion that:
(a) Seller is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, and is duly qualified to
do business and in good standing in the State of Iowa. Seller is registered
as a savings and loan holding company with the Office of Thrift Supervision.
(b) Seller possesses all corporate power to own and operate its
properties and to carry out its business as and where the same are now being
conducted, as described in the Prospectus.
(c) The Bank is organized and is validly existing as a federally
chartered savings association under the laws of the United States in stock
form of organization under the laws of the United States, and possesses all
corporate power to own and operate its properties and to carry out its
business as and where the same are now being conducted, as described in the
Prospectus.
(d) Seller has the corporate power and authority to enter into and
deliver the Agreement and to carry out its obligations thereunder.
(e) The Agreement has been duly authorized by all necessary corporate
action of the Board of Directors of Seller and such Agreement constitutes a
valid and binding obligation of Seller that is enforceable against Seller in
accordance with its terms.
(f) The execution, delivery and performance by Seller of the Agreement,
or the consummation of the Acquisition, or compliance by Seller with any of
the provisions of the Agreement will not (i) violate, conflict with or
result in a breach of any of the provisions of, or constitute a default (or
event which, with notice or the lapse of time, or both, would constitute a
default) under, or result in the termination of, or result in the right to
termination or acceleration of, or result in the creation of, any lien,
security interest, charge or encumbrance upon any of the properties of
Seller or the Bank under any of the terms, conditions or provisions of (A)
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the articles of incorporation or bylaws of Seller, or the charter or bylaws
of the Bank or (B) to the best of our knowledge, any note, bond, mortgage,
indenture, deed of trust, license, lease, agreement or other instrument or
obligation to which Seller or the Bank or any of their properties or assets
may be subject, or (ii) to the best of our knowledge, violate any judgment,
ruling, order, writ, injunction, decree, statute, rule or regulation
applicable to Seller or the Bank, or any of their properties or assets;
other than violations, conflicts, breaches, defaults, terminations,
accelerations or liens which would not have a Material Adverse Effect on
Seller or the Bank.
(g) Except as received prior to the date hereof, no notice to, filing
with, exemption or review by or authorization, consent or approval of, any
public body or authority is necessary for the consummation by Seller or the
Bank of the Acquisition as contemplated by the Agreement, other than the
filing and approval, as the case may be, of certificates of merger by the
Secretaries of State of the States of Iowa and Delaware.
(h) To the best of our knowledge, the authorized and issued capital of
Seller consists of 2,000,000 shares, $0.01 par value of Seller common stock
("Seller Common Stock") of which, as of ______________, 1999, __________
shares were issued and ________ shares were outstanding. As of
_________________, 1999, Seller had reserved _________ shares of Seller
Common Stock for issuance under the Seller stock option and incentive plan.
To the best of our knowledge, from the date of the Agreement through the
date hereof, no equity securities of Seller have been issued, excluding any
shares of Seller Common Stock which may have been issued under the Seller
stock option and incentive plan. To the best of our knowledge, and except as
set forth above, there are no options, warrants, scrip rights to subscribe
to, calls or commitments of any character whatsoever relating to, or
securities or rights convertible into, shares of any capital stock of
Seller, or contracts, commitments, understandings or arrangements by which
Seller is or may become bound to issue additional shares of capital stock or
options, warrants or rights to purchase or acquire any additional shares of
capital stock of Seller. To the best of our knowledge, all of the issued and
outstanding shares of Seller Common Stock are validly issued, fully paid and
nonassessable by Seller and none of such shares have been issued in
violation of any preemptive or similar right of any shareholder of Seller.
(i) To the best of our knowledge, neither Seller nor the Bank is the
subject of any order, decree or injunction of a court or agency of competent
jurisdiction that enjoins or prohibits the consummation of the Acquisition.
(j) To the best of our knowledge, there is no litigation, proceeding or
controversy before any court or governmental agency, whether federal, state
or local, pending or threatened, that is likely to have a Material Adverse
Effect on Seller or the Bank.
This opinion is being rendered solely for the benefit of the addressees
hereof and is not to be used or relied upon by any other person without our
prior written consent. We expressly disavow any obligation to update this letter
in the future.
Respectively submitted,
-3-
EXHIBIT D-1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of this
day of _____________ , 199__, by and between MIDWEST FEDERAL SAVINGS AND LOAN
ASSOCIATION OF EASTERN IOWA, a federally chartered savings and loan association
whose address is 3225 Division Street, Burlington, Iowa 52601, (which, together
with any successor thereto which executes and delivers the assumption agreement
provided for in Section 11(a) hereof or which otherwise becomes bound by the
terms and provisions of this Agreement by operation of law, is hereinafter
referred to as the "Association"), and WILLIAM D. HASSEL whose residence address
is 2526 Quail Ridge Drive, Burlington, Iowa (the "Employee").
WHEREAS, the Employee has served as President and Chief Executive Officer
of the Association and Midwest Bancshares, Inc.; and
WHEREAS, the Association is being merged with and into Mahaska Investment
Company ("Mahaska"); and
WHEREAS, Employee is willing to release any rights which he may have
pursuant to his Employment Agreement dated November 10, 1992, upon Closing of
the merger in consideration for the execution of this Agreement and payment of
the cash which Employee is entitled to receive at Closing; and
WHEREAS, the Board of Directors of the Association recognizes that the
possibility of a change in control of Mahaska or the Association may exist and
that such possibility, and the uncertainty and questions which it may raise
among management, may result in the departure or distraction of key management
personnel to the detriment of the Association, Mahaska and its stockholders; and
WHEREAS, the Board of Directors of the Association desires to provide
certain benefits to the Employee following his involuntary termination of
employment after a change of control of the Association or Mahaska; and
WHEREAS, the Board of Directors of the Association believes it is in the
best interests of the Association to enter into this Agreement with the Employee
in order to assure continuity of management of the Association and to reinforce
and encourage the continued attention and dedication of the Employee to his
assigned duties without distraction in the face of potentially disruptive
circumstances arising from the possibility of a change in control of Mahaska or
the Association, although no such change is now contemplated; and
WHEREAS, the Board of Directors of the Association has approved and
authorized the execution of this Agreement with the Employee to take effect as
stated in Section 4 hereof;
EXHIBIT D
(to Merger Agreement)
NOW, THEREFORE, in consideration of the foregoing and of the
respective covenants and agreements of the parties herein contained, it is
AGREED as follows:
1. Employment. The Employee will be employed as President and Chief
Executive Officer of the Association, or in such other more senior capacity as
the Board of Directors may subsequently determine. As President and Chief
Executive Officer, Employee shall render administrative and management services
as are customarily performed by persons situated in similar executive
capacities, and shall have other powers and duties as may from time to time be
prescribed by the Board, provided that such duties are consistent with the
Employee's position. The Employee shall continue to devote his best efforts and
substantially all his business time and attention to the business and affairs of
the Association and its subsidiaries and affiliated companies.
2. Compensation. (a) Salary. The Association agrees to pay the Employee
during the term of this Agreement a salary established by the Board of
Directors. The salary hereunder as of the Commencement Date (as defined in
Section 4 hereof) shall be $121,500. The salary provided for herein shall be
payable in cash not less frequently than bi-monthly in accordance with the
practices of the Association; provided, however, that no such salary is required
to be paid by the terms of this Agreement in respect of any month or portion
thereof subsequent to the termination of this Agreement, and provided further,
that the amount of such salary shall be reviewed by the Association not less
often than annually and may be increased (but not decreased) from time to time
in such amounts as the Board of Directors in its discretion may decide, subject
to the customary withholding tax and other employee taxes as required with
respect to compensation paid by a corporation to an employee.
(b) Discretionary Bonuses. The Employee shall be entitled to participate
in an equitable manner with all other executive officers of the Association
in discretionary bonuses as authorized and declared by the Board of
Directors of the Association to its executive employees. No other
compensation provided for in this Agreement shall be deemed a substitute for
the Employee's right to participate in such bonuses when and as declared by
the Board of Directors. Association agrees to maintain a comparable bonus
program to the program maintained by Mahaska for its executive employees and
the executive employees of its subsidiaries.
(c) Expenses. During the term of his employment hereunder, the Employee
shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred by him (in accordance with policies and procedures at
least as favorable to the Employee as those presently applicable to the
senior executive officers of the Association) in performing services
hereunder, provided that the Employee properly accounts therefor in
accordance with Association policy.
3. Benefits. (a) Participation in Retirement and Employee Benefit Plans. The
Employee shall be entitled while employed hereunder to participate equitably in,
and receive benefits under, all plans relating to stock options, stock
purchases, pension, thrift, profit-sharing, group life insurance, medical
coverage, education, cash or stock bonuses, and other retirement or employee
benefits or combinations thereof, that are now or hereafter maintained for the
benefit of the Association's executive employees or for its employees generally.
(b) Fringe Benefits. The Employee shall be eligible while employed
hereunder to participate in, and receive benefits under, any other fringe
benefits which are or may become applicable to the Association's executive
employees or to its employees generally, including a reasonable expense
account and continued payment by the Association of Employee's dues for
membership in the Burlington Golf Club. In addition, the Association shall
provide Employee with an automobile and shall pay all expenses relative to
the use or maintenance of said automobile by Employee. A new executive
automobile (a Ford Explorer XLT or a comparable automobile) will be
purchased by the Association for Employee's use not less frequently than
every three (3) years. When a new automobile is purchased by the Association
for Employee's use, Employee will have the right to purchase the automobile
formerly used by Employee for a cash price equal to the greatest of the
following: (1) the depreciated book value of such automobile on the books
and records of the Association as of the last day of the calendar month next
preceding the date of purchase; (2) the lowest published wholesale trade-in
value for such automobile as of the calendar month next preceding the date
of purchase; or (3) such cash price as shall be determined with reference to
a method of determination consistent with the regulations, policies and
directives of the Office of Thrift Supervision ("OTS"), as applicable at the
time of such purchase. The Association reserves the right to consult with
the appropriate OTS officials prior to the consummation of Employee's
purchase of any formerly-used automobile to determine compliance with any
such OTS regulation, policy or directive. Employee will have the option to
purchase such automobile for a period of thirty (30) days after the date on
which a new automobile is provided by Association for Employee's use. Such
option shall also apply during the thirty (30) day period next following
Employee's termination of service with the Association.
D-1-2
(c) Retirement, Employee Benefit Plans and Fringe Benefits. Association
agrees to maintain retirement, employee benefit plans and fringe benefit
programs comparable to the programs maintained by Mahaska for its executive
employees and the executive employees of its subsidiaries.
4. Term. The term of employment under this Agreement shall be a period of 36
months commencing on the closing date of the merger (the "Commencement Date"),
subject to earlier termination as provided herein. Beginning on the first
anniversary of the Commencement Date, and on each anniversary thereafter, the
term of employment under this Agreement shall be extended, subject to the next
sentence of this paragraph, for a period of one year unless either the
Association or the Employee gives contrary written notice to the other not less
than 90 days in advance of the date on which the term of employment under this
Agreement would otherwise be extended. This Agreement will not be automatically
extended unless such extension is approved by the Board of Directors of the
Association following the Board's review of a formal performance evaluation of
the Employee performed by the disinterested members of the Board of Directors of
the Association and reflected in the minutes of the Board of Directors.
Reference herein to the term of employment under this Agreement shall refer to
both such initial term and such extended terms. As of the Commencement Date,
that certain Employment Agreement entered into between the Association and
Employee dated November 10, 1992, shall terminate and have no further force or
effect.
5. Vacations. The Employee shall be entitled, without loss of pay, to absent
himself voluntarily from the performance of his employment under this Agreement,
all such voluntary absences to count as vacation time, provided that:
(a) During the term of employment under this Agreement, the Employee
shall be entitled to an annual paid vacation of four weeks, or, if more
favorable to Employee, in accordance with the most favorable plans,
policies, programs or practices of the Association and its affiliated
companies as in effect for the Association at any time during the six month
period immediately preceding the Commencement Date, or as in effect
generally at any time thereafter with respect to other senior executives of
the association and its affiliated companies;
(b) The timing of vacations shall be scheduled in a reasonable manner by
the Employee;
(c) The Board of Directors shall, solely at the Employee's request, be
entitled to grant to the Employee a leave or leaves of absence with or
without pay at such time or times and upon such terms and conditions as the
Board of Directors, in its discretion, may determine; and
(d) Association agrees to maintain a vacation program comparable to the
program maintained by Mahaska for its executive employees and the executive
employees of its subsidiaries.
6. Termination of Employment; Death. (a) The Board of Directors may
terminate the Employee's employment at any time, but any termination by the
Association's Board of Directors, other than termination for cause, shall not
prejudice the Employee's right to compensation or other benefits under the
Agreement. If the employment of the Employee is involuntarily terminated, other
than (i) for "cause" as provided in this Section 6(a) or (ii) by reason of death
or disability as provided in Sections 6(c) or 7, or if there occurs a voluntary
or involuntary termination of the Employee's employment as defined in Section 8
in connection with or within 12 months after a change in control which occurs at
any time during the term of this Agreement as provided in Section 8, the
Employee shall be entitled to receive, (i) his then applicable salary for the
remaining term of the Agreement as calculated in accordance with Section 4
hereof, payable in such manner and at the times as such salary would have been
payable to the Employee under Section 2 had he remained in the employ of' the
Association, (ii) his then applicable health insurance benefits for the
remaining term of the Agreement as calculated in accordance with Section 4
hereof, and (iii) his bonus determined on an annualized basis for the period
commencing on the first day of the fiscal year in which such termination occurs
and ending as of the month end closest to date of termination in such fiscal
year, which bonus shall be payable at such time as it would have been payable
under Section 2(b) had he remained in the employ of the Association.
The terms "termination" or "involuntarily terminated" in this Agreement
shall refer to the termination of the employment of Employee without his express
written consent. In addition, a material diminution of or interference with the
Employee's duties, responsibilities and benefits, including, but not limited to,
those events constituting a loss of status as defined in Section 8(b), shall be
deemed and shall constitute an involuntary termination of employment to the same
extent as express notice of such involuntary termination.
D-1-3
In case of termination of the Employee's employment for cause, the
Association shall pay the Employee his salary through the date of termination,
and the Association shall have no further obligation to the Employee under this
Agreement. The Employee shall have no right to receive compensation or other
benefits for any period after termination for cause. For purposes of this
Agreement, termination for "cause" shall include termination because of the
Employee's personal dishonesty, incompetence, willful misconduct, breach of a
fiduciary duty involving personal profit, intentional failure to perform stated
duties, willful violation of any material law, rule, or regulation (other than
traffic violations or similar offenses) or final cease-and-desist order, or
material breach of any provision of this Agreement. Notwithstanding the
foregoing, the Employee shall not be deemed to have been terminated for cause
unless and until there shall have been delivered to the Employee a copy of a
resolution, duly adopted by the affirmative vote of not less than a majority of
the entire membership of the Board of Directors of the Association at a meeting
of the Board called and held for such purpose (after reasonable notice to the
Employee and an opportunity for the Employee, together with the Employee's
counsel, to be heard before the Board), stating that in the good faith opinion
of the Board the Employee was guilty of conduct constituting "cause" as set
forth above and specifying the particulars thereof.
(b) The Employee's employment may be voluntarily terminated by the
Employee at any time upon 90 days written notice to the Association or upon
such shorter period as may be agreed upon between the Employee and the Board
of Directors of the Association. In the event of such voluntary termination,
except as provided in Section 8 below, the Association shall be obligated to
continue to pay the Employee his salary only through the date of termination
together with any accrued unpaid vacation pay as of said date, at the time
such payments are due, and the Association shall have no further obligation
to the Employee under this Agreement.
(c) Notwithstanding any other provision of this Agreement to the
contrary, Employee may voluntarily terminate his employment under this
Agreement by written notice to the Association upon the occurrence, or
within thirty (30) days thereafter, if the Employee suffers a loss of
status, as defined in Section 8(b) hereof. Upon such termination Employee
shall be entitled to receive his salary, and such group medical insurance
coverage or reimbursement benefits provided for (and on the same terms as
set forth) in Section 3(a) hereof, during the unexpired portion of the term
of this Agreement (i.e., excluding any automatic extensions of the term
hereof that would otherwise occur pursuant to Section 4 hereof subsequent to
such termination), with such salary to be payable in such manner and at such
times as such salary would have been payable to Employee under Section 4 had
he remained in the employ of the Association. Except as set forth in the
preceding sentence, Employee shall have no right to receive any other
payments or benefits under this Agreement for any periods after the date of
such termination.
(d) In the event of the death of the Employee during the term of
employment under this Agreement and prior to any termination hereunder, the
Employee's estate, or such person as the Employee may have previously
designated in writing, shall be entitled to receive from the Association the
salary of the Employee through the last day of the calendar month in which
his death shall have occurred together with Employee's unused vacation and
sick leave, and the term of employment under this Agreement shall end on
such last day of the month.
(e) If the Employee is suspended from office and/or temporarily
prohibited from participating in the conduct of the Association's affairs by
a notice served under Section 8(e)(3) or (g)(1) of the Federal Deposit
Insurance Act ("FDIA"), 12 U.S.C. Section 1818(e)(3); (g)(1) (as amended
from time to time), the Association's obligations under this Agreement shall
be suspended as of the date of service, unless stayed by appropriate
proceedings. If the charges in the notice are dismissed, the Association may
in its discretion (i) pay the Employee all or part of the compensation
withheld while its obligations under this Agreement were suspended and (ii)
reinstate in whole or in part any of the obligations which were suspended.
(f) If the Employee is removed from office and/or permanently prohibited
from participating in the conduct of the Association's affairs by an order
issued under Section 8(e)(4) or (g)(1) of the FDIA, 12 U.S.C. Section
1818(e)(4); (g)(1) (as amended from time to time), all obligations of the
Association under this Agreement shall terminate, as of the effective date
of the order, but vested rights of the Employee shall not be affected.
(g) If the Association becomes in default (as defined in Section 3(x)(1)
of the FDIA, 12 U.S.C. Section 1813(x)(1) (as amended from time to time)),
all obligations under this Agreement shall terminate as of the date of
default, but this provision shall not affect any vested rights of the
Employee.
D-1-4
(h) All obligations under this Agreement shall be terminated, except to
the extent determined that continuation of this Agreement is necessary for
the continued operation of the Association: (i) by the Director of the OTS
or his or her designee at the time the Federal Deposit Insurance corporation
("FDIC") enters into an agreement to provide assistance to or on behalf of
the Association under the authority contained in Section 13(c) of the FDIA,
12 U.S.C. Section 1823(c) (as amended from time to time); or (ii) by the
.Director of the OTS or his or her designee at the time the Director of the
OTS or his or her designee approves a supervisory merger to resolve problems
related to operation of the Association or when the Association is
determined by the Director of the OTS to be in an unsafe or unsound
condition. Any rights of the Employee that have already vested, however,
shall not be affected by any such action.
(i) In the event the Association purports to terminate the Employee for
cause, but it is determined by a court of competent jurisdiction that cause
did not exist for such termination, or if in any event it is determined by
any such court that the Association has failed to make timely payment of any
amounts owed to the Employee under this Agreement, the Employee shall be
entitled to reimbursement for all reasonable costs, including attorneys'
fees, incurred in challenging such termination or collecting such amounts.
Such reimbursement shall be in addition to all rights to which the Employee
is otherwise entitled under this Agreement.
7. Disability. If Employee shall become disabled or incapacitated to the
extent that he is unable to perform the duties of President and Chief
Executive Officer, and if such disability or incapacity shall have continued
for a period of ninety (90) consecutive days or longer, or if a physician
selected by the Board of Directors of 'the Association shall examine
Employee and shall state in writing that in his professional opinion such
disability or incapacity is likely to continue for a period of ninety (90)
consecutive days or longer after such opinion, then in either such event the
Board of Directors may terminate this Agreement upon written notice to
Employee. Upon termination under this Section 7, Employee shall be entitled
to receive during the unexpired portion of the term of this Agreement (i.e.,
excluding any automatic extensions of the term hereof that would otherwise
occur pursuant to Section 4 hereof subsequent to such termination):
(a) seventy-five percent (75%) of his salary less the amount of any
disability payments received by Employee during such period on account of
disability insurance maintained for Employee's benefit by the Association at
the Association's expense, with the reduced salary to be payable in such
manner and at such times as such salary would have been payable to Employee
under Section 2 had he remained in the employ of the Association; and
(b) such group medical insurance coverage or reimbursement benefits
provided for (and on the same terms as set forth) in Section 3(a) hereof.
Except as set forth in the preceding sentence, Employee shall have no right
to receive any other payments or benefits under this Agreement for any periods
after the date of such termination other than pursuant to any disability
benefits of the type provided for executive employees of the Association, if
any.
8. Change in Control. (a) Involuntary Termination. If both (i) a change of
control has occurred and (ii) the Employee's employment is involuntarily
terminated (other than for cause or pursuant to any of Sections 6(c) through
6(g) or Section 7 of this Agreement) in connection with or within 12 months
after such change in control during the term of employment under this Agreement,
the Association shall pay to the Employee in a lump sum in cash within 25
business days after the Date of Termination (as hereinafter defined) of
employment an amount equal to 299 percent of the Employee's then current
compensation.
An involuntary termination shall include a loss of status in connection with
the change in control. A loss of status shall include, but not be limited to:
(1) a change in the principal workplace of the Employee to a location outside of
Burlington, Iowa; (2) a material reduction in the secretarial or other
administrative support of the Employee other than as part of a Association or
Mahaska company-wide reduction in staff; (3) a reduction or adverse change in
the Employee's title or decision-making responsibilities; (4) a reduction in the
number or seniority of other Association personnel reporting to the Employee,
other than as part of an Association or Mahaska company-wide reorganization or
reduction in staff, or a reduction in the frequency with which, or in the nature
of the matters with respect to which, such personnel are to report to the
Employee; (5) an increase in the number of, or a decrease in the seniority of,
the persons (other than the Board of Directors) to whom the Employee must
report, other than is normal and customary for a President and Chief Executive
Officer, or such other, more senior, capacity as the Employee may be
subsequently employed by the Association, of a similarly situated financial
institution or financial institution holding company; (6) a reduction or adverse
change in the salary, perquisites, benefits, contingent benefits or vacation
time which had theretofore been provided to the Employee, other than as part of
D-1-5
an overall program applied uniformly and with equitable effect to all members of
the senior management of the Association or Mahaska; and (7) a material increase
in the required hours of work or the workload of the Employee.
(b) Definitions. For purposes of Sections 8, 9 and 11 of this Agreement,
"Date of Termination" means the earlier of (i) the date upon which the
Association gives notice to the Employee of the termination of his
employment with the Association or (ii) the date upon which the Employee
ceases to serve as an Employee of the Association, and "change in control"
is defined solely as any acquisition of control (other than by a trustee or
other fiduciary holding securities under an employee benefit plan of Mahaska
or a subsidiary of Mahaska), as defined in 12 C.F.R. Section 574.4, or any
successor regulation, of the Association or Mahaska which would require the
filing of an application for acquisition of control or notice of change in
control in a manner as set forth in 12 C.F.R.
Section 574.3, or any successor regulation.
(c) Compliance with Capital Requirements. Notwithstanding anything in
this Agreement to the contrary, no payments may be made pursuant to Section
8 hereof without the prior approval of the OTS if following such payment the
Association would not be in compliance with its fully phased-in capital
requirements as defined in OTS regulations.
9. Certain Reduction of Payments by the Association. (a) Anything in this
Agreement to the contrary notwithstanding, in the event it shall be determined
that any payment or distribution by the Association to or for the benefit of the
Employee (whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise) (a "Payment") would be nondeductible
(in whole or part) by the Association for Federal income tax purposes because of
Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), then
the aggregate present value of amounts payable or distributable to or for the
benefit of the Employee pursuant to this Agreement (such amounts payable or
distributable pursuant to this Agreement are hereinafter referred to as
"Agreement Payments") shall be reduced to the Reduced Amount. The "Reduced
Amount" shall be an amount, not less than zero, expressed in present value which
maximizes the aggregate present value of Agreement Payments without causing any
Payment to be nondeductible by the Association because of Section 280G of the
Code. For purposes of this Section 9, present value shall be determined in
accordance with Section 280G(d) (4) of the Code.
(b) All determinations required to be made under this Section 9 shall be
made by the Association's independent auditors, or at the election of such
auditors by such other firm or individuals of recognized expertise as such
auditors may select (such auditors or, if applicable, such other firm or
individual, are hereinafter referred to as the "Advisory Firm"). The Advisory
Firm shall within ten business days of the Date of Termination, or at such
earlier time as is requested by the Association, provide to both the Association
and the Employee an opinion (and detailed supporting calculations) that the
Association has substantial authority to deduct for federal income tax purposes
the full amount of the Agreement Payments and that the Employee has substantial
authority not to report on his federal income tax return any excise tax imposed
by Section 4999 of the Code with respect to the Agreement Payments. Any such
determination and opinion by the Advisory Firm shall be binding upon the
Association and the Employee. The Employee shall determine which and how much,
if any, of the Agreement Payments shall be eliminated or reduced consistent with
the requirements of this Section 9, provided that, if the Employee does not make
such determination within ten business days of the receipt of the calculations
made by the Advisory Firm, the Association shall elect which and how much, if
any, of the Agreement Payments shall be eliminated or reduced consistent with
the requirements of this Section 9 and shall notify the Employee promptly of
such election. Within five business days of the earlier of (i) the Association's
receipt of the Employee's determination pursuant to the immediately preceding
sentence of this Agreement or (ii) the Association's election in lieu of such
determination, the Association shall pay to or distribute to or for the benefit
of the Employee such amounts as are then due the Employee under this Agreement.
The Association and the Employee shall cooperate fully with the Advisory Firm,
including without limitation providing to the Advisory Firm all information and
materials reasonably requested by it, in connection with the making of the
determinations required under this Section 9.
(c) As a result of uncertainty in application of Section 280G of the
Code at the time of the initial determination by the Advisory Firm
hereunder, it is possible that Agreement Payments will have been made by the
Association which should not have been made ("Overpayment") or that
additional Agreement Payments will not have been made by the Association
which should have been made ("Underpayment"), in each case, consistent with
the calculations required to be made hereunder. In the event that the
Advisory Firm, based upon the assertion by the Internal Revenue Service
against the Employee of a deficiency which the Advisory Firm believes has a
high probability of success determines that an overpayment has been made,
any such Overpayment paid or distributed by the Association to or for the
benefit of Employee shall be treated for all purposes as a loan ab initio
which the Employee shall repay to the Association together with interest at
the applicable federal rate provided for in Section 7872(f)(2) of the Code;
D-1-6
provided, however, that no such loan shall be deemed to have been made and
no amount shall be payable by the Employee to the Association if and to the
extent such deemed loan and payment would not either reduce the amount on
which the Employee is subject to tax under Section 1 and Section 4999 of
the Code or generate a refund of such taxes. In the event that the Advisory
Firm, based upon controlling preceding or other substantial authority,
determines that an Underpayment has occurred, any such Underpayment shall
be promptly paid by the Association to or for the benefit of the Employee
together with interest at the applicable federal rate provided for in
Section 7872(f)(2) of the Code.
(d) Payments Not To Exceed Three Times Annualized Salary.
Notwithstanding anything in this Agreement to the contrary, in no event
shall the sum of any payment to the Employee under Section 8 of this
Agreement and any payments of salary and bonus under Section 6 of this
Agreement exceed an amount that is three times the Employee's salary
(annualized) as of the date of termination of employment. For this purpose,
the amount of payments of salary and bonus to be made in the future under
Section 6 shall be determined on a present value basis, and present value
shall be determined as provided for in Section 9 of this Agreement.
10. No Mitigation. The amount of any salary or other payment or benefit
provided for in this Agreement shall not be reduced by any compensation earned
by the Employee as the result of employment by another employer, by retirement
benefits after the date of termination, or otherwise.
11. No Assignments. (a) This Agreement is personal to each of the parties
hereto, and neither party may assign or delegate any of its rights or
obligations hereunder without first obtaining the written consent of the other
party; provided, however, that the Association will require any successor or
assign (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Association, by an assumption agreement in form and substance satisfactory to
the Employee, to expressly assume and agree to perform this Agreement in the
same manner and to the same extent that the Association would be required to
perform it if no such succession or assignment had taken place. Failure of the
Association to obtain such an assumption agreement prior to the effectiveness of
any such succession or assignment shall be a breach of this Agreement and shall
entitle the Employee to compensation from the Association in the same amount and
on the same terms as the compensation pursuant to Section 8(a) hereof. For
purposes of implementing the provisions of this Section 11(a), the date on which
any such succession becomes effective shall be deemed the Date of Termination.
(b) This Agreement and all rights of the Employee hereunder shall inure
to the benefit of and be enforceable by the Employee's personal and legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Employee should die while any amounts would
still be payable to the Employee hereunder if the Employee had continued to
live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to the Employee's devisee,
legatee or other designee or if there is no such designee, to the Employee's
estate.
12. Notice. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered or by certified mail,
return receipt requested, postage prepaid, addressed to the respective addresses
set forth on the first page of this Agreement (provided that all notices to the
Association shall be directed to the attention of the Board of Directors of the
Association with a copy to the Secretary of the Association) or to such other
address as either party may have furnished to the other in writing in accordance
herewith.
13. Amendments. No amendments or additions to this Agreement shall be
binding unless in writing and signed by both parties, except as herein otherwise
provided.
14. Paragraph Headings. The paragraph headings used in this Agreement are
included solely for convenience and shall not affect, or be used in connection
with, the interpretation of this Agreement.
15. Severability.. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
16. Governing Law. This Agreement shall be governed by the laws of the
United States to the extent applicable and otherwise by the laws of the State of
Iowa.
D-1-7
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
MIDWEST FEDERAL SAVINGS AND LOAN
ASSOCIATION OF EASTERN IOWA
By , Chairman of the Board
-----------------
EMPLOYEE
By William D. Hassel
D-1-8
EXHIBIT D-2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of this
______ day of _______________, 199__, by and between MIDWEST FEDERAL SAVINGS AND
LOAN ASSOCIATION OF EASTERN IOWA, a federally chartered savings and loan
association whose address is 3225 Division Street, Burlington, Iowa 52601,
(which, together with any successor thereto which executes and delivers the
assumption agreement provided for in Section 11(a) hereof or which otherwise
becomes bound by the terms and provisions of this Agreement by operation of law,
is hereinafter referred to as the "Association"), and ROBERT D. MASCHMANN whose
residence address is 12916 Flint Bottom Road, Burlington, Iowa (the "Employee").
WHEREAS, the Employee has served as Executive Vice President and Chief
Financial Officer of the Association and Midwest Bancshares, Inc.; and
WHEREAS, the Association is being merged with and into Mahaska Investment
Company ("Mahaska"); and
WHEREAS, Employee is willing to release any rights which he may have
pursuant to his Employment Agreement dated November 10, 1992, upon Closing of
the merger in consideration for the execution of this Agreement and payment of
the cash which Employee is entitled to receive at Closing; and
WHEREAS, the Board of Directors of the Association recognizes that the
possibility of a change in control of Mahaska or the Association may exist and
that such possibility, and the uncertainty and questions which it may raise
among management, may result in the departure or distraction of key management
personnel to the detriment of the Association, Mahaska and its stockholders; and
WHEREAS, the Board of Directors of the Association desires to provide
certain benefits to the Employee following his involuntary termination of
employment after a change of control of the Association or Mahaska; and
WHEREAS, the Board of Directors of the Association believes it is in the
best interests of the Association to enter into this Agreement with the Employee
in order to assure continuity of management of the Association and to reinforce
and encourage the continued attention and dedication of the Employee to his
assigned duties without distraction in the face of potentially disruptive
circumstances arising from the possibility of a change in control of Mahaska or
the Association, although no such change is now contemplated; and
WHEREAS, the Board of Directors of the Association has approved and
authorized the execution of this Agreement with the Employee to take effect as
stated in Section 4 hereof;
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein contained, it is AGREED as
follows:
EXHIBIT D
(to Merger Agreement)
1. Employment. The Employee will be employed as Executive Vice President and
Chief Financial Officer of the Association, or in such other more senior
capacity as the Board of Directors may subsequently determine. As Executive Vice
President and Chief Financial Officer, Employee shall render administrative and
management services as are customarily performed by persons situated in similar
executive capacities, and shall have other powers and duties as may from time to
time be prescribed by the Board, provided that such duties are consistent with
the Employee's position. The Employee shall continue to devote his best efforts
and substantially all his business time and attention to the business and
affairs of the Association and its subsidiaries and affiliated companies.
2. Compensation.
(a) Salary. The Association agrees to pay the Employee during the term of
this Agreement a salary established by the Board of Directors. The salary
hereunder as of the Commencement Date (as defined in Section 4 hereof) shall be
$94,500. The salary provided for herein shall be payable in cash not less
frequently than bi-monthly in accordance with the practices of the Association;
provided, however, that no such salary is required to be paid by the terms of
this Agreement in respect of any month or portion thereof subsequent to the
termination of this Agreement, and provided further, that the amount of such
salary shall be reviewed by the Association not less often than annually and may
be increased (but not decreased) from time to time in such amounts as the Board
of Directors in its discretion may decide, subject to the customary withholding
tax and other employee taxes as required with respect to compensation paid by a
corporation to an employee.
(b) Discretionary Bonuses. The Employee shall be entitled to participate in
an equitable manner with all other executive officers of the Association in
discretionary bonuses as authorized and declared by the Board of Directors of
the Association to its executive employees. No other compensation provided for
in this Agreement shall be deemed a substitute for the Employee's right to
participate in such bonuses when and as declared by the Board of Directors.
Association agrees to maintain a comparable bonus program to the program
maintained by Mahaska for its executive employees and the executive employees of
its subsidiaries.
(c) Expenses. During the term of his employment hereunder, the Employee
shall be entitled to receive prompt reimbursement for all reasonable expenses
incurred by him (in accordance with policies and procedures at least as
favorable to the Employee as those presently applicable to the senior executive
officers of the Association) in performing services hereunder, provided that the
Employee properly accounts therefor in accordance with Association policy.
3. Benefits.
(a) Participation in Retirement and Employee Benefit Plans. The Employee
shall be entitled while employed hereunder to participate equitably in, and
receive benefits under, all plans relating to stock options, stock purchases,
pension, thrift, profit-sharing, group life insurance, medical coverage,
education, cash or stock bonuses, and other retirement or employee benefits or
combinations thereof, that are now or hereafter maintained for the benefit of
the Association's executive employees or for its employees generally.
(b) Fringe Benefits. The Employee shall be eligible while employed hereunder
to participate in, and receive benefits under, any other fringe benefits which
are or may become applicable to the Association's executive employees or to its
employees generally, including a reasonable expense account and continued
payment by the Association of Employee's dues for membership in the Burlington
Golf Club.
(c) Retirement, Employee Benefit Plans and Fringe Benefits. Association
agrees to maintain retirement, employee benefit plans and fringe benefit
programs comparable to the programs maintained by Mahaska for its executive
employees and the executive employees of its subsidiaries.
D-2-2
4. Term. The term of employment under this Agreement shall be a period of 36
months commencing on the closing date of the merger (the "Commencement Date"),
subject to earlier termination as provided herein. Beginning on the first
anniversary of the Commencement Date, and on each anniversary thereafter, the
term of employment under this Agreement shall be extended, subject to the next
sentence of this paragraph, for a period of one year unless either the
Association or the Employee gives contrary written notice to the other not less
than 90 days in advance of the date on which the term of employment under this
Agreement would otherwise be extended. This Agreement will not be automatically
extended unless such extension is approved by the Board of Directors of the
Association following the Board's review of a formal performance evaluation of
the Employee performed by the disinterested members of the Board of Directors of
the Association and reflected in the minutes of the Board of Directors.
Reference herein to the term of employment under this Agreement shall refer to
both such initial term and such extended terms. As of the Commencement Date,
that certain Employment Agreement entered into between the Association and
Employee dated November 10, 1992, shall terminate and have no further force or
effect.
5. Vacations. The Employee shall be entitled, without loss of pay, to absent
himself voluntarily from the performance of his employment under this Agreement,
all such voluntary absences to count as vacation time, provided that:
(a) During the term of employment under this Agreement, the Employee
shall be entitled to an annual paid vacation of four weeks, or, if more
favorable to Employee, in accordance with the most favorable plans,
policies, programs or practices of the Association and its affiliated
companies as in effect for the Association at any time during the six month
period immediately preceding the Commencement Date, or as in effect
generally at any time thereafter with respect to other senior executives of
the association and its affiliated companies;
(b) The timing of vacations shall be scheduled in a reasonable manner by
the Employee;
(c) The Board of Directors shall, solely at the Employee's request, be
entitled to grant to the Employee a leave or leaves of absence with or
without pay at such time or times and upon such terms and conditions as the
Board of Directors, in its discretion, may determine; and
(d) Association agrees to maintain a vacation program comparable to
the program maintained by Mahaska for its executive employees and the
executive employees of its subsidiaries.
6. Termination of Employment; Death. (a) The Board of Directors may
terminate the Employee's employment at any time, but any termination by the
Association's Board of Directors, other than termination for cause, shall not
prejudice the Employee's right to compensation or other benefits under the
Agreement. If the employment of the Employee is involuntarily terminated, other
than (i) for "cause" as provided in this Section 6(a) or (ii) by reason of death
or disability as provided in Sections 6(c) or 7, or if there occurs a voluntary
or involuntary termination of the Employee's employment as defined in Section 8
in connection with or within 12 months after a change in control which occurs at
any time during the term of this Agreement as provided in Section 8, the
Employee shall be entitled to receive, (i) his then applicable salary for the
remaining term of the Agreement as calculated in accordance with Section 4
hereof, payable in such manner and at the times as such salary would have been
payable to the Employee under Section 2 had he remained in the employ of' the
Association, (ii) his then applicable health insurance benefits for the
remaining term of the Agreement as calculated in accordance with Section 4
hereof, and (iii) his bonus determined on an annualized basis for the period
commencing on the first day of the fiscal year in which such termination occurs
and ending as of the month end closest to date of termination in such fiscal
year, which bonus shall be payable at such time as it would have been payable
under Section 2(b) had he remained in the employ of the Association.
The terms "termination" or "involuntarily terminated" in this Agreement
shall refer to the termination of the employment of Employee without his express
written consent. In addition, a material diminution of or interference with the
Employee's duties, responsibilities and benefits, including, but not limited to,
those events constituting a loss of status as defined in Section 8(b), shall be
deemed and shall constitute an involuntary termination of employment to the same
extent as express notice of such involuntary termination.
In case of termination of the Employee's employment for cause, the
Association shall pay the Employee his salary through the date of termination,
and the Association shall have no further obligation to the Employee under this
Agreement. The Employee shall have no right to receive compensation or other
benefits for any period after termination for cause. For purposes of this
Agreement, termination for "cause" shall include termination because of the
Employee's personal dishonesty, incompetence, willful misconduct, breach of a
D-2-3
fiduciary duty involving personal profit, intentional failure to perform stated
duties, willful violation of any material law, rule, or regulation (other than
traffic violations or similar offenses) or final cease-and-desist order, or
material breach of any provision of this Agreement. Notwithstanding the
foregoing, the Employee shall not be deemed to have been terminated for cause
unless and until there shall have been delivered to the Employee a copy of a
resolution, duly adopted by the affirmative vote of not less than a majority of
the entire membership of the Board of Directors of the Association at a meeting
of the Board called and held for such purpose (after reasonable notice to the
Employee and an opportunity for the Employee, together with the Employee's
counsel, to be heard before the Board), stating that in the good faith opinion
of the Board the Employee was guilty of conduct constituting "cause" as set
forth above and specifying the particulars thereof.
(b) The Employee's employment may be voluntarily terminated by the Employee
at any time upon 90 days written notice to the Association or upon such shorter
period as may be agreed upon between the Employee and the Board of Directors of
the Association. In the event of such voluntary termination, except as provided
in Section 8 below, the Association shall be obligated to continue to pay the
Employee his salary only through the date of termination together with any
accrued unpaid vacation pay as of said date, at the time such payments are due,
and the Association shall have no further obligation to the Employee under this
Agreement.
(c) Notwithstanding any other provision of this Agreement to the contrary,
Employee may voluntarily terminate his employment under this Agreement by
written notice to the Association upon the occurrence, or within thirty (30)
days thereafter, if the Employee suffers a loss of status, as defined in Section
8(b) hereof. Upon such termination Employee shall be entitled to receive his
salary, and such group medical insurance coverage or reimbursement benefits
provided for (and on the same terms as set forth) in Section 3(a) hereof, during
the unexpired portion of the term of this Agreement (i.e., excluding any
automatic extensions of the term hereof that would otherwise occur pursuant to
Section 4 hereof subsequent to such termination), with such salary to be payable
in such manner and at such times as such salary would have been payable to
Employee under Section 4 had he remained in the employ of the Association.
Except as set forth in the preceding sentence, Employee shall have no right to
receive any other payments or benefits under this Agreement for any periods
after the date of such termination.
(d) In the event of the death of the Employee during the term of employment
under this Agreement and prior to any termination hereunder, the Employee's
estate, or such person as the Employee may have previously designated in
writing, shall be entitled to receive from the Association the salary of the
Employee through the last day of the calendar month in which his death shall
have occurred together with Employee's unused vacation and sick leave, and the
term of employment under this Agreement shall end on such last day of the month.
(e) If the Employee is suspended from office and/or temporarily prohibited
from participating in the conduct of the Association's affairs by a notice
served under Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act
("FDIA"), 12 U.S.C. Section 1818(e)(3); (g)(1) (as amended from time to time),
the Association's obligations under this Agreement shall be suspended as of the
date of service, unless stayed by appropriate proceedings. If the charges in the
notice are dismissed, the Association may in its discretion (i) pay the Employee
all or part of the compensation withheld while its obligations under this
Agreement were suspended and (ii) reinstate in whole or in part any of the
obligations which were suspended.
(f) If the Employee is removed from office and/or permanently prohibited
from participating in the conduct of the Association's affairs by an order
issued under Section 8(e)(4) or (g)(1) of the FDIA, 12 U.S.C. Section
1818(e)(4); (g)(1) (as amended from time to time), all obligations of the
Association under this Agreement shall terminate, as of the effective date of
the order, but vested rights of the Employee shall not be affected.
(g) If the Association becomes in default (as defined in Section 3(x)(1) of
the FDIA, 12 U.S.C. Section 1813(x)(1) (as amended from time to time)), all
obligations under this Agreement shall terminate as of the date of default, but
this provision shall not affect any vested rights of the Employee.
(h) All obligations under this Agreement shall be terminated, except to the
extent determined that continuation of this Agreement is necessary for the
continued operation of the Association: (i) by the Director of the OTS or his or
her designee at the time the Federal Deposit Insurance corporation ("FDIC")
enters into an agreement to provide assistance to or on behalf of the
Association under the authority contained in Section 13(c) of the FDIA, 12
U.S.C. Section 1823(c) (as amended from time to time); or (ii) by the Director
of the OTS or his or her designee at the time the Director of the OTS or his or
D-2-4
her designee approves a supervisory merger to resolve problems related to
operation of the Association or when the Association is determined by the
Director of the OTS to be in an unsafe or unsound condition. Any rights of the
Employee that have already vested, however, shall not be affected by any such
action.
(i) In the event the Association purports to terminate the Employee for
cause, but it is determined by a court of competent jurisdiction that cause did
not exist for such termination, or if in any event it is determined by any such
court that the Association has failed to make timely payment of any amounts owed
to the Employee under this Agreement, the Employee shall be entitled to
reimbursement for all reasonable costs, including attorneys' fees, incurred in
challenging such termination or collecting such amounts. Such reimbursement
shall be in addition to all rights to which the Employee is otherwise entitled
under this Agreement.
7. Disability. If Employee shall become disabled or incapacitated to the
extent that he is unable to perform the duties of Executive Vice President and
Chief Financial Officer, and if such disability or incapacity shall have
continued for a period of ninety (90) consecutive days or longer, or if a
physician selected by the Board of Directors of the Association shall examine
Employee and shall state in writing that in his professional opinion such
disability or incapacity is likely to continue for a period of ninety (90)
consecutive days or longer after such opinion, then in either such event the
Board of Directors may terminate this Agreement upon written notice to Employee.
Upon termination under this Section 7, Employee shall be entitled to receive
during the unexpired portion of the term of this Agreement (i.e., excluding any
automatic extensions of the term hereof that would otherwise occur pursuant to
Section 4 hereof subsequent to such termination):
(a) seventy-five percent (75%) of his salary less the amount of any
disability payments received by Employee during such period on account of
disability insurance maintained for Employee's benefit by the Association at
the Association's expense, with the reduced salary to be payable in such
manner and at such times as such salary would have been payable to Employee
under Section 2 had he remained in the employ of the Association; and
(b) such group medical insurance coverage or reimbursement benefits
provided for (and on the same terms as set forth) in Section 3(a) hereof.
Except as set forth in the preceding sentence, Employee shall have no right to
receive any other payments or benefits under this Agreement for any periods
after the date of such termination other than pursuant to any disability
benefits of the type provided for executive employees of the Association, if
any.
8. Change in Control.
(a) Involuntary Termination. If both (i) a change of control has occurred
and (ii) the Employee's employment is involuntarily terminated (other than for
cause or pursuant to any of Sections 6(c) through 6(g) or Section 7 of this
Agreement) in connection with or within 12 months after such change in control
during the term of employment under this Agreement, the Association shall pay to
the Employee in a lump sum in cash within 25 business days after the Date of
Termination (as hereinafter defined) of employment an amount equal to 299
percent of the Employee's then current compensation.
An involuntary termination shall include a loss of status in connection with
the change in control. A loss of status shall include, but not be limited to:
(1) a change in the principal workplace of the Employee to a location outside of
Burlington, Iowa; (2) a material reduction in the secretarial or other
administrative support of the Employee other than as part of a Association or
Mahaska company-wide reduction in staff; (3) a reduction or adverse change in
the Employee's title or decision-making responsibilities; (4) a reduction in the
number or seniority of other Association personnel reporting to the Employee,
other than as part of an Association or Mahaska company-wide reorganization or
reduction in staff, or a reduction in the frequency with which, or in the nature
of the matters with respect to which, such personnel are to report to the
Employee; (5) an increase in the number of, or a decrease in the seniority of,
the persons (other than the Board of Directors) to whom the Employee must
report, other than is normal and customary for a Executive Vice President and
Chief Financial Officer, or such other, more senior, capacity as the Employee
may be subsequently employed by the Association, of a similarly situated
financial institution or financial institution holding company; (6) a reduction
or adverse change in the salary, perquisites, benefits, contingent benefits or
vacation time which had theretofore been provided to the Employee, other than as
part of an overall program applied uniformly and with equitable effect to all
members of the senior management of the Association or Mahaska; and (7) a
material increase in the required hours of work or the workload of the Employee.
D-2-5
(b) Definitions. For purposes of Sections 8, 9 and 11 of this Agreement,
"Date of Termination" means the earlier of (i) the date upon which the
Association gives notice to the Employee of the termination of his employment
with the Association or (ii) the date upon which the Employee ceases to serve as
an Employee of the Association, and "change in control" is defined solely as any
acquisition of control (other than by a trustee or other fiduciary holding
securities under an employee benefit plan of Mahaska or a subsidiary of
Mahaska), as defined in 12 C.F.R. Section 574.4, or any successor regulation, of
the Association or Mahaska which would require the filing of an application for
acquisition of control or notice of change in control in a manner as set forth
in 12 C.F.R. Section 574.3, or any successor regulation.
(c) Compliance with Capital Requirements. Notwithstanding anything in this
Agreement to the contrary, no payments may be made pursuant to Section 8 hereof
without the prior approval of the OTS if following such payment the Association
would not be in compliance with its fully phased-in capital requirements as
defined in OTS regulations.
9. Certain Reduction of Payments by the Association. (a) Anything in this
Agreement to the contrary notwithstanding, in the event it shall be determined
that any payment or distribution by the Association to or for the benefit of the
Employee (whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise) (a "Payment") would be nondeductible
(in whole or part) by the Association for Federal income tax purposes because of
Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), then
the aggregate present value of amounts payable or distributable to or for the
benefit of the Employee pursuant to this Agreement (such amounts payable or
distributable pursuant to this Agreement are hereinafter referred to as
"Agreement Payments") shall be reduced to the Reduced Amount. The "Reduced
Amount" shall be an amount, not less than zero, expressed in present value which
maximizes the aggregate present value of Agreement Payments without causing any
Payment to be nondeductible by the Association because of Section 280G of the
Code. For purposes of this Section 9, present value shall be determined in
accordance with Section 280G(d) (4) of the Code.
(b) All determinations required to be made under this Section 9 shall be
made by the Association's independent auditors, or at the election of such
auditors by such other firm or individuals of recognized expertise as such
auditors may select (such auditors or, if applicable, such other firm or
individual, are hereinafter referred to as the "Advisory Firm"). The Advisory
Firm shall within ten business days of the Date of Termination, or at such
earlier time as is requested by the Association, provide to both the Association
and the Employee an opinion (and detailed supporting calculations) that the
Association has substantial authority to deduct for federal income tax purposes
the full amount of the Agreement Payments and that the Employee has substantial
authority not to report on his federal income tax return any excise tax imposed
by Section 4999 of the Code with respect to the Agreement Payments. Any such
determination and opinion by the Advisory Firm shall be binding upon the
Association and the Employee. The Employee shall determine which and how much,
if any, of the Agreement Payments shall be eliminated or reduced consistent with
the requirements of this Section 9, provided that, if the Employee does not make
such determination within ten business days of the receipt of the calculations
made by the Advisory Firm, the Association shall elect which and how much, if
any, of the Agreement Payments shall be eliminated or reduced consistent with
the requirements of this Section 9 and shall notify the Employee promptly of
such election. Within five business days of the earlier of (i) the Association's
receipt of the Employee's determination pursuant to the immediately preceding
sentence of this Agreement or (ii) the Association's election in lieu of such
determination, the Association shall pay to or distribute to or for the benefit
of the Employee such amounts as are then due the Employee under this Agreement.
The Association and the Employee shall cooperate fully with the Advisory Firm,
including without limitation providing to the Advisory Firm all information and
materials reasonably requested by it, in connection with the making of the
determinations required under this Section 9.
(c) As a result of uncertainty in application of Section 280G of the Code at
the time of the initial determination by the Advisory Firm hereunder, it is
possible that Agreement Payments will have been made by the Association which
should not have been made ("Overpayment") or that additional Agreement Payments
will not have been made by the Association which should have been made
("Underpayment"), in each case, consistent with the calculations required to be
made hereunder. In the event that the Advisory Firm, based upon the assertion by
the Internal Revenue Service against the Employee of a deficiency which the
Advisory Firm believes has a high probability of success determines that an
overpayment has been made, any such Overpayment paid or distributed by the
Association to or for the benefit of Employee shall be treated for all purposes
as a loan ab initio which the Employee shall repay to the Association together
with interest at the applicable federal rate provided for in Section 7872(f)(2)
of the Code; provided, however, that no such loan shall be deemed to have been
made and no amount shall be payable by the Employee to the Association if and to
the extent such deemed loan and payment would not either reduce the amount on
which the Employee is subject to tax under Section 1 and Section 4999 of the
Code or generate a refund of such taxes. In the event that the Advisory Firm,
D-2-6
based upon controlling preceding or other substantial authority, determines that
an Underpayment has occurred, any such Underpayment shall be promptly paid by
the Association to or for the benefit of the Employee together with interest at
the applicable federal rate provided for in Section 7872(f)(2) of the Code.
(d) Payments Not to Exceed Three Times Annualized Salary. Notwithstanding
anything in this Agreement to the contrary, in no event shall the sum of any
payment to the Employee under Section 8 of this Agreement and any payments of
salary and bonus under Section 6 of this Agreement exceed an amount that is
three times the Employee's salary (annualized) as of the date of termination of
employment. For this purpose, the amount of payments of salary and bonus to be
made in the future under Section 6 shall be determined on a present value basis,
and present value shall be determined as provided for in Section 9 of this
Agreement.
10. No Mitigation. The amount of any salary or other payment or benefit
provided for in this Agreement shall not be reduced by any compensation earned
by the Employee as the result of employment by another employer, by retirement
benefits after the date of termination, or otherwise.
11. No Assignments. (a) This Agreement is personal to each of the parties
hereto, and neither party may assign or delegate any of its rights or
obligations hereunder without first obtaining the written consent of the other
party; provided, however, that the Association will require any successor or
assign (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Association, by an assumption agreement in form and substance satisfactory to
the Employee, to expressly assume and agree to perform this Agreement in the
same manner and to the same extent that the Association would be required to
perform it if no such succession or assignment had taken place. Failure of the
Association to obtain such an assumption agreement prior to the effectiveness of
any such succession or assignment shall be a breach of this Agreement and shall
entitle the Employee to compensation from the Association in the same amount and
on the same terms as the compensation pursuant to Section 8(a) hereof. For
purposes of implementing the provisions of this Section 11(a), the date on which
any such succession becomes effective shall be deemed the Date of Termination.
(b) This Agreement and all rights of the Employee hereunder shall inure to
the benefit of and be enforceable by the Employee's personal and legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Employee should die while any amounts would still
be payable to the Employee hereunder if the Employee had continued to live, all
such amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to the Employee's devisee, legatee or other designee
or if there is no such designee, to the Employee's estate.
12. Notice. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered or by certified mail,
return receipt requested, postage prepaid, addressed to the respective addresses
set forth on the first page of this Agreement (provided that all notices to the
Association shall be directed to the attention of the Board of Directors of the
Association with a copy to the Secretary of the Association) or to such other
address as either party may have furnished to the other in writing in accordance
herewith.
13. Amendments. No amendments or additions to this Agreement shall be
binding unless in writing and signed by both parties, except as herein otherwise
provided.
14. Paragraph Headings. The paragraph headings used in this Agreement are
included solely for convenience and shall not affect, or be used in connection
with, the interpretation of this Agreement.
15. Severability. The provisions of this Agreement shall be deemed severable
and the invalidity or unenforceability of any provision shall not affect the
validity or enforceability of the other provisions hereof.
16. Governing Law. This Agreement shall be governed by the laws of the
United States to the extent applicable and otherwise by the laws of the State of
Iowa.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
MIDWEST FEDERAL SAVINGS AND LOAN
ASSOCIATION OF EASTERN IOWA
By , Chairman of the Board
------------------
EMPLOYEE
By Robert D. Maschmann
D-2-8
EXHIBIT E
OPINION OF COUNSEL TO MAHASKA
_______________, 1999
Midwest Bancshares, Inc. Mahaska Investment Company
Burlington, Iowa Oskaloosa, Iowa
Re: Agreement and Plan of Merger by and between
Mahaska Investment Company and Midwest Bancshares, Inc.
Ladies and Gentlemen:
We have acted as counsel to Mahaska Investment Company, an Iowa corporation
("Mahaska"), in connection with the acquisition (the "Acquisition") by Mahaska
of Midwest Bancshares, Inc., a Delaware corporation (the "Seller"), pursuant to
the Agreement and Plan of Merger, dated February 2, 1999 (the "Agreement"), by
and between Mahaska and the Seller. We render this opinion pursuant to Section
7.2 of the Agreement.
In rendering the opinions set forth herein, we have examined originals or
copies of such corporate records of Mahaska, such laws and the originals or
copies of such other records, agreements, instruments, certificates and
documents as we have deemed necessary as a basis for the opinions hereinafter
expressed. We have assumed the genuineness of all signatures; the authenticity
of all documents submitted to us as originals; the conformity to the originals
of all documents submitted to us as certified, photostatic or conformed copies;
the authenticity of the originals of all such latter documents; and the
correctness of certificates submitted to us by officers and representatives of
Mahaska. In addition, with respect to the opinions as to the due execution and
binding nature of the Agreement, we have assumed the due execution and delivery
of such agreements by all parties thereto other than Mahaska. In rendering our
opinion, we have relied upon certificates of corporate officers of Mahaska as to
certain factual matters material to such opinion, and upon certificates of
public officials. Capitalized terms not defined herein shall be defined as in
the Agreement. Whenever our opinion with respect to the existence or absence of
facts is indicated to be based upon our knowledge, we are referring to the
actual knowledge of the Chapman and Cutler attorneys who have represented
Mahaska in matters that are the subject of this opinion. Except to the extent
expressly set forth herein, we have not undertaken any independent investigation
to determine the existence or absence of such facts and no inference as to our
knowledge of the existence or absence of such facts should be drawn from our
representation of Mahaska.
Based upon and subject to the foregoing, we are of the opinion that:
(a) Mahaska is a corporation duly organized, validly existing and in good
standing under the laws of the State of Iowa, and is duly qualified to do
business and in good standing in all jurisdictions where the ownership or
leasing of their respective properties or the conduct of its business requires
Mahaska to be so qualified. Mahaska is registered as a bank holding company with
the Board of Governors of the Federal Reserve System under the Bank Holding
Company Act of 1956, as amended.
(b) Mahaska possesses all corporate power to own and operate its properties
and to carry out its business as and where the same are now being conducted.
(c) Mahaska has the corporate power and authority to enter into and deliver
the Agreement and to carry out its obligations thereunder.
(d) The Agreement has been duly authorized by all necessary corporate action
of the Board of Directors of Mahaska and such Agreement constitutes a valid and
binding obligation of Mahaska that is enforceable against Mahaska in accordance
with its terms, except as may be limited by bankruptcy, insolvency, moratorium,
reorganization or similar laws affecting the rights of creditors generally, or
the exercise of judicial discretion in accordance with general principles
applicable to equitable and similar remedies.
(e) The execution, delivery and performance by Mahaska of the Agreement, or
the consummation of the Acquisition, or compliance by Mahaska with any of the
provisions of the Agreement will not (i) violate, conflict with or result in a
breach of any of the provisions of, or constitute a default (or event which,
with notice or the lapse of time, or both, would constitute a default) under, or
result in the termination of, or result in the right to termination or
acceleration of, or result in the creation of, any lien, security interest,
charge or encumbrance upon any of the properties of Mahaska under any of the
terms, conditions or provisions of (A) the articles of incorporation or by-laws
of Mahaska, or (B) any note, bond, mortgage, indenture, deed of trust, license,
lease, agreement or other instrument or obligation to which Mahaska or any of
its properties or assets may be subject, or (ii) to the best of our knowledge,
violate any judgment, ruling, order writ, injunction, decree, statute, rule or
regulation applicable to Mahaska, or any of its properties or assets; other than
violations, conflicts, breaches, defaults, terminations, accelerations or liens
which would not have a Material Adverse Effect on Mahaska.
(f) Except as received prior to the date hereof, no notice to, filing with,
exemption or review by or authorization, consent or approval of, any public body
or authority is necessary for the consummation by Mahaska of the Acquisition as
contemplated by the Agreement, other than the filing and approval, as the case
may be, of certificates of merger by the Secretaries of State of the States of
Iowa and Delaware.
(g) To the best of our knowledge, the authorized and issued capital of
Mahaska consists of 20,000,000 shares, $5.00 par value of Mahaska common stock
("Mahaska Common Stock"), of which, as of _______________, 1999, _________
shares were issued and _________ shares were outstanding. As of
_________________, 1999, Mahaska had reserved _________ shares of Mahaska Common
Stock for issuance under the Mahaska stock option and incentive plans. To the
best of our knowledge, from the date of the Agreement through the date hereof,
no equity securities of Mahaska have been issued, excluding any shares of
Mahaska Common Stock which may have been issued under the Mahaska stock option
and incentive plans. To the best of our knowledge, and except as set forth
above, there are no options, warrants, scrip, rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities or rights
convertible into, shares of any capital stock of Mahaska, or contracts,
commitments, understandings or arrangements by which Mahaska is or may become
bound to issue additional shares of capital stock, or options, warrants or
rights to purchase or acquire any additional shares of capital stock of Mahaska.
To the best of our knowledge, all of the issued and outstanding shares of
Mahaska Common Stock are validly issued, fully paid and nonassessable by Mahaska
and none of such shares have been issued in violation of any preemptive or
similar right of any shareholder of Mahaska. The shares of Mahaska Common Stock
issued pursuant to the Agreement are duly authorized, validly issued, fully paid
and nonassessable by Mahaska, and none of such shares are subject to preemptive
or other similar rights.
(h) To the best of our knowledge, Mahaska is not the subject of any order,
decree or injunction of a court or agency of competent jurisdiction that enjoins
or prohibits the consummation of the Acquisition.
(i) To the best of our knowledge, there is no litigation, proceeding or
controversy before any court or governmental agency, whether federal, state or
local, pending or threatened, that is likely to have a Material Adverse Effect
on Mahaska.
The opinions expressed herein by the undersigned are expressly limited to
the laws of the United States of America and the corporate laws of the State of
Iowa. We assume no responsibility as to the applicability or the effect of the
laws of any other domestic or foreign jurisdiction on the subject transactions.
This opinion is being rendered solely for the benefit of the addressees
hereof and is not to be used or relied upon by any other person without our
prior written consent. We expressly disavow any obligation to update this letter
in the future.
Respectively submitted,
MCBoba
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