COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (this "Agreement"), made
this 10th day of April, 1998, between Mississippi View Holding Company, a
Minnesota corporation (the "Seller") and Messrs. Gerald Peterson and Neil
Adamek, solely in their capacity as trustees (the "Trustees") of the Mississippi
View Holding Company Stock Employee Compensation Trust (the "Trust") (the Trust
is hereinafter sometimes referred to as the "Purchaser") under a trust agreement
between the Seller and the Trustees dated April 10, 1998 (the "Trust
Agreement").
W I T N E S S E T H :
WHEREAS, as contemplated by the Trust Agreement, the
Purchaser is to purchase from the Seller, and the Seller is to sell to the
Purchaser, shares of the Seller's common stock, $0.10 par value (the "Common
Stock"), all as more specifically provided herein;
WHEREAS, Seller intends to initiate a tender offer, in
accordance with Rule 13e- 3 and Rule 13e-4 under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), under which Seller will offer to purchase
up to 222,000 shares of Common Stock (the "Tender Offer"), which is intended to
offset the dilution in earnings per share which would otherwise result from the
sale of Common Stock to the Trustees hereunder. Seller has provided to the
Trustees copies of the proposed forms of the Offer to Purchase and related
documents to be distributed in connection with the Tender Offer (the "Offer
Materials"). Seller will, upon the terms and subject to the conditions of the
Offer, determine a single per Share price (not greater than $21.50 nor less than
$19.50 per Share) that it will pay for Shares properly tendered and not
withdrawn pursuant to the Offer (the "Purchase Price"), taking into account the
number of Shares so tendered and the prices specified by tendering stockholders.
The Offer is subject to various conditions, as set forth in "The Offer --
Certain Conditions of the Offer" in the Offer to Purchase.
WHEREAS, the parties intend to base the purchase price to be
paid by the Trustee hereunder on the purchase price in the Tender Offer. The
parties intend that the transaction hereunder shall be closed immediately after
the expiration of the Tender Offer, and have requested and expect to obtain an
exemption (the "Exemptive Order") from the restrictions of Rule 13e-4(f)(6)
under the Exchange Act to permit such schedule to be followed.
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and subject to and on the terms and conditions
set forth herein, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
1.1 Purchase and Sale. Subject to the terms and conditions
set forth herein, the Seller will sell to the Purchaser, and the Purchaser will
purchase from the Seller, at the
Closing (as hereinafter defined), that number of shares of Common Stock which is
equal to the lesser of (i) the quotient of $1,214,750 divided by the Purchase
Price (as defined in the recitals to this Agreement) or (ii) 9.9% of the
outstanding shares of Common Stock at the time of the Closing, with any
fractional shares of Common Stock being rounded to the nearest whole number of
shares. The shares of Common Stock to be purchased by the Purchaser and sold by
the Seller at the Closing are referred to in this Agreement as the "Common
Shares." In consideration for the Common Shares, the Purchaser will deliver to
the Seller the note in the form of Schedule 1.1 to this Agreement in the
principal amount of $1,214,750 (the "Note").
1.2 Closing. The closing of the sale and purchase of the
Common shares hereunder (the "Closing"), will be held at the offices of the
Seller's counsel (a) as soon as practicable following the closing of the
Seller's Tender Offer, or (b) at such earlier time, date and place as may be
designated by the Seller, or (c) at such later time, date and place as may be
mutually agreed upon by the Seller and the Purchaser.
1.3 Delivery and Payment. At the Closing, the Seller will
deliver to the Purchaser a certificate representing the Common Shares, which
certificate shall be registered in the name of the Trustees, or the name of its
nominee, against payment by the Purchaser to the Seller of the aggregate
purchase price therefor. The Seller will pay all stamp and other transfer taxes,
if any, which may be payable in respect of the sale and delivery of the Common
Shares.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents and warrants to the Purchaser as
follows:
2.1 Corporate Existence and Authority. The Seller (i) is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Minnesota; (ii) has all requisite corporate power to execute,
deliver and perform this Agreement; and (iii) has taken all necessary corporate
action to authorize the execution, delivery and performance of this Agreement.
2.2 No Conflict. The execution and delivery of this Agreement
does not, and the consummation of the transactions contemplated hereby will not,
violate, conflict with or constitute a default under (i) the Seller's
certificate of incorporation or by-laws, (ii) any agreement, indenture or other
instrument to which the Seller is a party or by which the Seller or its assets
may be bound or (iii) upon receipt of the Exemptive Order, any law, regulation,
order, arbitration, award, judgment or decree applicable to the Seller.
2.3 Validity. This Agreement has been duly executed and
delivered by the Seller and is a valid and binding agreement of the Seller
enforceable against the Seller in accordance with its terms, except as the
enforceability thereof may be limited by any applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other laws affecting the
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enforcement of creditors' rights generally, and by general principles of equity.
2.4 The Common Shares. The Common Shares have been duly
authorized and are (or when issued as contemplated hereby will be) validly
issued and constitute fully-paid and non-assessable shares of Common Stock,
$0.10 par value per share, of the Seller. No stockholder of the Seller has any
preemptive or other subscription right to acquire any shares of Common Stock.
The Seller will convey to the Purchaser, on the date of Closing, good and valid
title to the Common Shares free and clear of any liens, claims, security
interests and encumbrances.
2.5 Litigation. There are no actions, suits, proceedings or
arbitrations or investigations pending, or to the Seller's best knowledge,
threatened in any court or before any governmental agency or instrumentality or
arbitration panel or otherwise against or by the Seller which seek to or could
restrain, prohibit, rescind or declare unlawful, or result in substantial
damages in respect of, this Agreement or the performance hereof by the Seller
(including, without limitation, the delivery of the Common Shares).
2.6 Business and Financial Information. Seller has heretofore
delivered to the Purchaser copies of the audited consolidated statements of
financial condition, and statements of earnings and statements of shareholders'
equity of Seller and its subsidiaries as of and for the fiscal years ended
September 30, 1997 and 1996 and the unaudited consolidated statements of
financial condition, and statement of earnings of Seller and its subsidiaries as
of and for the three months ended December 31, 1997 and 1996 (including the
related notes and schedules, the "Seller Financial Statements"). The Seller
Financial Statements fairly present the consolidated results of operations and
changes in financial position for the periods set forth therein and the
consolidated financial position as at the dates thereof of Seller and its
subsidiaries, in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as set forth in the
notes thereto and subject, in the case of unaudited financial statements, to the
omission of certain notes not ordinarily accompanying such unaudited financial
statements and to normal year-end audit adjustments which in each case will not
be material to Seller and its subsidiaries taken as a whole. Since March 23,
1995, Seller has filed with the Securities and Exchange Commission all forms,
reports and documents required to be filed by it pursuant to the Exchange Act
(the "Disclosure Documents"), all of which have complied as to form in all
material respects with all applicable requirements of such Acts. None of the
Disclosure Documents, at the time filed, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Seller's Rule
13e-3 Transaction Statement and Issuer Tender Offer Statement on Schedule 13E-4
relating to the Offer, and the Offer to Purchase and the other documents sent to
holders of shares of Common Stock in connection with the Offer, do not contain
and will not contain, at the time filed, any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were or shall be made, not misleading.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Seller as
follows:
3.1 Authority; Validity. The Purchaser has full power and
authority to execute and deliver this Agreement and the Note as Trustee and to
consummate the transactions contemplated hereby. The Note has been duly executed
by the Trustee on behalf of the Trust and, upon the execution and delivery by
the Trustee on behalf of the Trust, the Note will be a valid and binding
agreement of the Purchaser enforceable in accordance with its terms, except as
the enforceability thereof may be limited by any applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other laws
affecting the enforcement of creditors' rights generally, and by general
principles of equity.
ARTICLE IV
RESTRICTIONS ON DISPOSITION OF THE COMMON SHARES
4.1 Restricted Securities. The Purchaser acknowledges that
the Purchaser is acquiring the Common Shares pursuant to a transaction exempt
from registration under the Securities Act of 1933, as amended (the "Securities
Act"). The Purchaser represents, warrants and agrees that all Common Shares
acquired by the Purchaser pursuant to this Agreement are being acquired for
investment without any intention of making a distribution thereof, or of making
any sale or other disposition thereof which would be in violation of the
Securities Act or any applicable state securities law, and that the Purchaser
will not dispose of any of the Common Shares except that the Trustees will, from
time to time, convey a portion of the Common Shares to the participants in the
Plans to satisfy the obligations of the Company thereunder and convey a portion
of the Common Shares to the trustee of the Plans, and except upon termination of
the Trust to the extent that the Trust then holds any Common Shares, all in
compliance with all provisions of applicable federal and state law regulating
the issuance, sale and distribution of securities.
4.2 Legend. Until such time as the Common Shares are
registered pursuant to the provisions of the Securities Act, any certificate or
certificates representing the Common Shares delivered pursuant to Section 1.3,
will bear a legend in substantially the following form:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and
may not be sold, transferred or otherwise disposed of unless
they have first been registered under such Act or unless an
exemption from registration is available."
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The Seller may place stop transfer orders against the registration or transfer
of any share evidenced by such a certificate or certificates until such time as
the requirements of the foregoing are satisfied.
ARTICLE V
COVENANTS OF SELLER
The Seller agrees that:
5.1 Financial Statements, Reports and Documents. Subsequent
to the Closing, and for as long as the Common Shares are held by the Trust
(unless the Trustees shall otherwise consent in writing), the Seller shall
deliver to the Trustees each of the following:
(a) Annual Statements. As soon as available and in
any event within one hundred twenty (120) days after the
close of each fiscal year of the Seller, copies of the
consolidated statement of financial position of the Seller
and its subsidiaries as of the close of such fiscal year and
consolidated statements of income, cash flow and
shareholders' equity of the Seller and its subsidiaries for
such fiscal year, in each case setting forth in comparative
form the figures for the preceding fiscal year, all in
reasonable detail and accompanied by an opinion thereon of
Bertram Cooper & Co., LLP, or of other independent public
accountants of recognized national standing, to the effect
that such financial statements have been prepared in
accordance with generally accepted accounting principles
consistently applied (except for changes in which such
accountants concur) and that the examination of such
accountants in connection with such financial statements has
been made in accordance with generally accepted auditing
standards and, accordingly, includes such tests of the
accounting records and such other auditing procedures as were
considered necessary in the circumstances;
(b) SEC and Other Reports. Promptly upon their
becoming available, one copy of each financial statement,
report, notice or proxy statement sent by the Seller to
stockholders generally and of each regular or periodic
report, registration statement or prospectus (other than any
registration statement on Form S-8 and its related
prospectus) filed by the Seller with the Securities and
Exchange Commission or any successor agency; and
(c) Other Information. Such other information
concerning the business, properties or financial condition of
the Seller as the Trustee shall reasonably request.
The Seller will comply with all federal, state, local and foreign laws,
regulations or orders, and all the rules of any foreign laws, regulations or
orders, and all the rules of any stock exchange or similar entity which are
applicable to it or to the conduct of this business, and, without
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limiting the generality of the foregoing, shall make such filings, distributions
and disclosures as are required by the Securities Act, the Exchange Act, or any
of the regulations, rules or orders promulgated thereunder, insofar as the
failure to comply would materially and adversely affect the Company and its
subsidiaries taken as a whole. To the extent required under the Exchange Act,
the Seller will maintain complete and accurate books, records and accounts in
accordance with the requirements of Section 13(b)(2) under the Exchange Act.
ARTICLE VI
CONDITIONS TO CLOSING
6.1 Conditions to Obligations of the Purchaser. The
obligation of the Purchaser to purchase the Common Shares is subject to the
satisfaction of the following conditions on the date of Closing:
(a) The representations and warranties of the Seller
set forth in Article II hereof shall be true and correct; and
if the Closing shall occur on a date other than the date of
this Agreement, the Purchaser shall have been furnished with
a certificate, dated the date of Closing, to such effect,
signed by an authorized officer of the Seller;
(b) All permits, approvals, authorizations and
consents of third parties necessary for the consummation of
the transactions herein shall have been obtained, and no
order of any court or administrative agency shall be in
effect which restrains or prohibits the transactions
contemplated by this Agreement, and no suit, action or other
proceeding by any governmental body or other person shall
have been instituted which questions the validity or legality
of the transactions contemplated by this Agreement; and
(c) The Exemptive Order shall be in full force and
effect and shall be sufficient to permit the sale of the
Common Shares to the Trustees on the date of Closing as
contemplated hereby.
6.2 Conditions to Obligations of the Seller. The obligation
of the Seller to issue, sell and deliver the Common Shares to the Purchaser is
subject to the satisfaction of the following conditions on the date of Closing:
(a) The representations and warranties of the
Purchaser set forth in Article III hereof shall be true and
correct; and if the Closing shall occur on a date other than
the date of this Agreement, the Seller shall have been
furnished with a certificate dated the date of Closing, to
such effect, signed by the Trustees;
(b) No order of any court or administrative agency
shall be in effect which restrains or prohibits the
transactions contemplated by this Agreement, and
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no suit, action or other proceeding by any governmental body
or other person shall have been instituted which questions
the validity or legality of the transactions contemplated by
this Agreement; and
(c) The Exemptive Order shall be in full force and
effect and shall be sufficient to permit the sale of the
Common Shares to the Trustees on the date of Closing as
contemplated hereby.
ARTICLE VII
MISCELLANEOUS
7.1 Expenses. The Seller shall pay all of its expenses, and
it shall pay the Purchaser's expenses, in connection with the authorization,
preparation, execution and performance of this Agreement, including without
limitation the reasonable fees and expenses of the Trustee, its agents,
representatives, counsel, financial advisors and consultants.
7.2 Survival of Seller's Representations and Warranties. All
representations and warranties made by the Seller to the Purchaser in this
Agreement shall survive the Closing.
7.3 Notices. All notices, requests, or other communications
required or permitted to be delivered hereunder shall be in writing, delivered
by registered or certified mail, return receipt requested, as follows:
(a) To the Seller:
Mississippi View Holding Company
35 East Broadway
Little Falls, Minnesota 56345
Attention: Thomas J. Leiferman
(b) To the Purchaser:
Mississippi View Holding Company
35 East Broadway
Little Falls, Minnesota 56345
Attention: Trustees of Mississippi View
Holding Company
Stock Employee Compensation Trust
Any party hereto may from time to time, by written notice given as aforesaid,
designate any other address to which notices, requests or other communications
addressed to it shall be sent.
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7.4 Specific Performance. The parties hereto acknowledge that
damages would be an inadequate remedy for any breach of the provisions of this
Agreement and agree that the obligations of the parties hereunder shall be
specifically enforceable, and neither party will take any action to impede the
other from seeking to enforce such rights of specific performance.
7.5 Successors and Assigns; Integration; Assignability. This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the parties hereto, and their respective legal representatives, successors
and assigns. This Agreement (a) constitutes, together with the Note, the Trust
Agreement, and any other written agreements between the Purchaser and the Seller
executed and delivered on the date hereof, the entire agreement between the
parties hereto and supersedes all other prior agreements and understandings,
both written and oral, among the parties, with respect to the subject matter
hereof; (b) shall not confer upon any persons other than the parties hereto any
rights or remedies hereunder; and (c) shall not be assignable by operation of
law or otherwise, except that the Trustees may assign all their rights hereunder
to any corporation or other institution exercising trust powers in connection
with any such institution assuming the duties of a trustee under the Trust.
7.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the state of Minnesota.
7.7 Further Assurances. Subject to the terms and conditions
herein provided, 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 to consummate and make effective the
transactions contemplated by this Agreement.
7.8 Amendment and Waiver. No amendment or waiver of any
provision of this Agreement or consent to departure therefrom shall be effective
unless in writing and signed by the Purchaser and the Seller.
7.9 Counterparts. This Agreement may be executed in any
number of counterparts with the same effect as if the signatures thereto were
upon one instrument.
7.10 Certain Limitations. The execution and delivery of this
Agreement and the performance by the Trustees of this Agreement and under the
terms of the Trust have been, or will be, effected by the Trustees in their
capacity as Trustees. Nothing in this Agreement shall be interpreted to
increase, decrease or modify in any manner any liability of the Trustees to the
Seller or to any Trustee, representative or other claimant by right of the
Seller resulting from the Trustees' performance of their duties under the
constituent instruments of the Trust, and no personal liability shall be
asserted or enforceable against said person by reason of any of the covenants,
statements or representations contained in this Agreement.
7.11 Incorporation. The terms and conditions of the Trust
Agreement relating to the nature of the responsibilities of the Trustees and the
indemnification of the Trustees by the Seller are incorporated herein by
reference and made applicable to this Agreement.
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IN WITNESS WHEREOF, the undersigned have duly executed this
Agreement on the date and year first above written.
By: /s/ Gerald Peterson
-----------------------------
Name:
Title:
as Trustee of the Mississippi View
Holding Company
Stock Employee Compensation Trust
Attest: /s/ Neil Adamek
------------------------
Title:
By: /s/ Neil Adamek
------------------------
Name:
Title:
as Trustee of the Mississippi View
Holding Company
Stock Employee Compensation Trust
Attest: Mary Ann Karnowski
------------------------
Title:
MISSISSIPPI VIEW HOLDING COMPANY
By: /s/ Thomas J. Leiferman
---------------------------
Name:
Title:
Attest: Mary Ann Karnowski
-------------------------
Title:
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