Exhibit 2.2
EXHIBIT 2.2
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION ("Agreement") is
entered into as of February 18, 1998, by and among Neodesha Savings and Loan
Association, FSA ("Neodesha"), a federally chartered mutual savings and loan
association, First Federal Savings and Loan Association of Independence ("First
Federal"), a federally chartered stock savings and loan association, and First
Independence Corporation (the "Holding Company"), a Delaware corporation that
owns all of the issued and outstanding capital stock of First Federal.
WITNESSETH:
WHEREAS, Neodesha desires to convert to the stock form of organization
through a conversion to the stock form of organization and simultaneous merger
with First Federal; and
WHEREAS, this simultaneous conversion and merger ("Merger Conversion")
shall be accomplished in accordance with this Agreement and with the Plan of
Merger Conversion ("Plan"), attached hereto as Exhibit A and incorporated by
reference herein, and in accordance with all applicable laws, rules and
regulations.
NOW, THEREFORE, for and in consideration of the premises and the mutual
promises herein set forth, Neodesha, First Federal and the Holding Company do
hereby mutually AGREE as follows:
1. Merger Conversion. Subject to the provisions and conditions herein
specified and the receipt of all required regulatory approvals, Neodesha shall
convert to a federally chartered capital stock savings and loan association and,
simultaneously therewith, Neodesha shall merge with First Federal, with First
Federal to be the resulting institution ("Resulting Institution"). Certain
savings account holders of Neodesha shall receive a proportionate interest in a
liquidation account to be established for their benefit in the event of a
complete liquidation of the Resulting Institution in
accordance with the Plan and Office of Thrift Supervision ("OTS") regulations.
Members of Neodesha shall receive the right to subscribe for shares of common
stock to be issued by the Holding Company in connection with this Merger
Conversion in accordance with the Plan and OTS regulations. Upon consummation of
the Merger Conversion, the corporate existence of First Federal and the Holding
Company shall be continued, and the Resulting Institution shall be a
continuation of the entity of Neodesha, the separate corporate existence of
which shall cease. This Merger Conversion shall be accomplished in accordance
with Federal statutes, the regulations of the OTS and the Plan adopted by
Neodesha.
2. Approval by Boards of Directors. At least two-thirds of each of the
respective boards of directors of Neodesha, First Federal and the Holding
Company shall approve the Merger Conversion as evidenced by the Plan and this
Agreement.
3. Filing of Required Regulatory Applications. Upon the execution and
delivery of this Agreement, Neodesha, with the cooperation of First Federal and
the Holding Company, shall cause to be prepared and filed with the OTS, and any
other appropriate regulatory agency, an application for approval of the Plan and
such other applications as shall be necessary to consummate the transactions
contemplated hereby. These applications shall be in such forms as may be
prescribed by the respective regulatory authorities and shall contain such
information as they may require.
4. Approval by Members. Upon approval of the Plan and requisite
applications by the applicable regulatory authorities, this Agreement and the
Plan shall be duly submitted to the members of Neodesha. The Merger Conversion
shall be subject to approval by the requisite vote of the members of Neodesha.
Neodesha shall use its best efforts to obtain the required approval of its
members to the transactions contemplated herein. To the extent required or
appropriate pursuant to applicable regulations, the Merger Conversion shall also
be submitted for approval to the
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stockholders of the Holding Company. The parties hereto, through their
respective officers and directors, shall execute and file with the appropriate
regulatory agencies all documents and papers necessary or required by such
agencies. The parties hereto shall take every reasonable and necessary step and
action to secure and to comply with such approvals as may be required by the
statutes, rules and regulations of the agencies having jurisdiction over this
Agreement and the transactions contemplated hereby.
5. Effective Date of Merger Conversion. The merger and conversion
provided for herein shall become effective on the Closing Date. The Closing Date
shall be the date upon which the last of the following occurs:
(a) all required regulatory approvals have been received in connection
with the conversion of Neodesha to a federally chartered capital stock
savings and loan association;
(b) all required regulatory approvals have been received in connection
with the merger of Neodesha with First Federal;
(c) all required regulatory approvals have been received by the
Holding Company in connection with the conversion, merger, stock offering
and associated transactions;
(d) all shares of the Holding Company required to be sold under the
Plan have been sold;
(e) all approvals of members of Neodesha (and, if applicable,
stockholders of the Holding Company) have been received; and
(f) all representations, warranties, covenants and conditions set
forth in this Agreement have been complied with or otherwise satisfied in
all material respects, unless waived in writing by the parties hereto.
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6. Resulting Institution and Holding Company. On the Closing Date, the
separate existence of Neodesha shall cease and such association shall be merged
with and into First Federal. First Federal shall be the federally chartered
stock savings and loan association resulting from the Merger Conversion.
7. Offices. The location of the home office of the Resulting
Institution shall be Myrtle & Sixth Streets, Independence, Kansas. The present
branch offices of First Federal and the office of Neodesha will be operated as
branch offices of the Resulting Institution. The location of all branch offices
of the Resulting Institution will be as provided in Schedule A hereto.
8. Savings Accounts. All savings accounts of Neodesha shall be and
become savings accounts in the Resulting Institution without change in their
respective contractual terms, maturity or withdrawal value. As of the Closing
Date, each savings account of Neodesha shall be considered for dividend or
interest purposes as if it had been a savings account of the Resulting
Institution at the time said savings account was opened and at all times
thereafter until such account ceases to be a savings account of the Resulting
Institution. Appropriate evidence of savings account ownership interest in the
Resulting Institution shall be provided by the Resulting Institution to each
savings account holder of Neodesha. Holders of savings accounts in the Resulting
Institution shall not have any voting rights in the Resulting Institution nor
will they have any other equity rights or rights to share in the remaining
assets of the Resulting Institution, except with respect to the rights of
certain savings account holders of Neodesha and First Federal in the liquidation
accounts established and to be established by the Resulting Institution pursuant
to OTS regulations in connection with the Plan and the prior conversion of First
Federal.
9. Transfer of Assets and Assumption of Liabilities. Upon the
consummation of the Merger Conversion, all of the assets and property of every
kind and character, real, personal and mixed,
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tangible and intangible, choses in action, rights, and credits then owned by
Neodesha, or which would inure to Neodesha, shall immediately by operation of
law and without any conveyance or transfer and without any further act or deed,
be vested in and become the property of the Resulting Institution which shall
have, hold and enjoy the same in its own right as fully and to the same extent
as the same were possessed, held and enjoyed by Neodesha immediately prior to
the consummation of the Merger Conversion. The Resulting Institution shall be
deemed to be and shall be a continuation of the entity of Neodesha and the
rights and obligations of Neodesha shall remain unimpaired. Upon the
consummation of the Merger Conversion, the Resulting Institution shall assume
and succeed to all of such rights, obligations, duties and liabilities of
Neodesha.
10. Board of Directors of the Resulting Institution. Upon consummation
of the Merger Conversion, the Board of Directors of the Resulting Institution
shall be the Board of Directors of First Federal until their respective
successors shall be duly elected and qualified or otherwise duly selected.
11. Employees and Employee Benefits.
(a) Upon the Closing Date, it is intended that the employees of
Neodesha shall become employees of the Resulting Institution. Their service
with Neodesha shall be deemed credited service with First Federal for
purposes of the eligibility and vesting requirements and criteria under
First Federal's employee benefit plans and policies, and they will be
integrated on an equitable basis into First Federal's salary evaluation
system.
(b) Not later than the Closing Date, First Federal will enter into an
employment contract (in substantially the form previously delivered to
Neodesha) with Xxxxxxxx X. Xxxxxx, the President of Neodesha.
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(c) Not later than the Closing Date, the Holding Company will grant to
Xx. Xxxxxx an option to purchase 3,000 shares, to Xxxxx Xxxxxxxxx an option
to purchase 1,500 shares and to each non-employee director of Neodesha who
elects to serve on the Resulting Institution's Neodesha area advisory board
an option to purchase 1,000 shares of common stock of the Holding Company.
Each such option shall have an exercise price equal to the fair market
value of the stock on the date of grant and a maximum term of ten years.
The stock options granted to Xx. Xxxxxx, Xx. Xxxxxxxxx and the non-employee
directors shall be pursuant to the terms of the Holding Company's 1993
Stock Option and Incentive Plan (the "Option Plan").
12. Senior Officers. The senior officers of the Resulting Institution
from and after the Closing Date shall be as set forth in Schedule B hereto. Such
officers shall continue to hold office for the term specified in the Bylaws of
the Resulting Institution.
13. Charter and Bylaws of Resulting Institution and Holding Company.
Following consummation of the Merger Conversion, the Charter and Bylaws of First
Federal, and the Certificate of Incorporation and Bylaws of the Holding Company,
each as in effect on the Closing Date, shall be and remain the Charter and
Bylaws of the Resulting Institution and the Certificate of Incorporation and
Bylaws of the Holding Company, respectively.
14. Liquidation Account. On the Closing Date, the Resulting Institution
shall establish on its books a liquidation account, in accordance with the Plan
and 12 C.F.R. Section 563b.3(f), for the benefit of certain savings account
holders of Neodesha who retain their savings accounts in the Resulting
Institution. The function of this liquidation account is to establish a priority
in the unlikely event of liquidation of the Resulting Institution. The existence
of the liquidation account shall not
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otherwise operate to restrict the use or application of any of the regulatory
capital accounts of the Resulting Institution.
15. Representations and Warranties of the Holding Company and First
Federal. The Holding Company and First Federal each hereby represent and warrant
the following, the truth and accuracy of each of which shall constitute a
condition precedent to the obligations of Neodesha hereunder. All
representations and warranties of the Holding Company and First Federal are as
of the date of this Agreement and through the Closing Date, unless such
representations and warranties refer to a specified date.
(a) Organization and Standing. The Holding Company is a
corporation duly incorporated, validly existing and in good standing
under the laws of the State of Delaware. All of the issued and
outstanding shares of First Federal are owned by the Holding Company
free and clear of any liens, encumbrances, claims, security
agreements, options, charges and restrictions. The Holding Company has
no subsidiaries other than First Federal. First Federal is a capital
stock savings and loan association and First Federal is duly organized
and validly existing under the laws of the United States of America.
The Holding Company and First Federal have all requisite corporate
power and authority and are duly qualified and licensed to own, lease
and operate their properties and to carry on their business as now
being conducted. The savings accounts of First Federal, to the extent
insurable, are insured by the FDIC. Their respective Charter,
Certificate of Incorporation and Bylaws, which are attached hereto as
Exhibit 15A, are complete and correct as of the date of this
Agreement.
(b) Capitalization. On the date of this Agreement, the authorized
capital stock of the Holding Company consists solely of 2,500,000
shares of Common Stock, $0.01 par value per share ("Holding Company
Common Stock"), and 500,000 shares of preferred stock. On
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such date, not more than 953,993 shares of Holding Company Common
Stock are validly issued and outstanding, and no shares of preferred
stock are issued or outstanding. All outstanding shares of capital
stock are validly issued, fully paid and nonassessable and possess no
preemptive rights.
(c) Authority for Agreement. The Holding Company and First
Federal each have full and requisite corporate power and authority to
execute and deliver this Agreement and, subject to the approval of
regulatory authorities (including without limitation, the OTS and the
U.S. Department of Justice and the Federal Trade Commission under the
Xxxx-Xxxxx- Xxxxxx Antitrust Improvements Act of 1976), to consummate
the Merger Conversion and to carry out their respective obligations
hereunder and under the Plan. The execution and delivery of this
Agreement, and the consummation of the Merger Conversion and the other
transactions contemplated hereby and by the Plan, have been duly
authorized by the Boards of Directors of the Holding Company and First
Federal, and, subject to the requisite approvals outlined above
(including the approval of the Holding Company's stockholders, if
applicable), this Agreement constitutes the valid and legally binding
obligation of the Holding Company and First Federal enforceable in
accordance with its terms. The execution and delivery of this
Agreement and the consummation of the Merger Conversion and the other
transactions contemplated hereby and by the Plan will not conflict
with or result in any violation of, or constitute a default under, any
provision of the Certificate of Incorporation, Charter or Bylaws of
the Holding Company or First Federal, or any material mortgage,
indenture, lease, agreement (including, but not limited to, any
agreement with any governmental agency or instrumentality having
jurisdiction over the business or properties of the Holding Company or
First Federal) or other material instrument, permit, concession,
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grant, franchise, license, judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to the Holding Company or
First Federal or any of their respective properties. For purposes of
this paragraph, a material mortgage, indenture, lease, agreement,
instrument, permit, concession, grant, franchise or license excludes
any mortgage, indenture, lease, agreement, instrument, permit,
concession, grant, franchise or license having a term expiring less
than six months from the date of this Agreement or which does not
require the annual expenditure of more than $50,000 (but shall include
any mortgage, indenture, lease, agreement, instrument, permit,
concession, grant, franchise or license pursuant to which credit has
been extended by First Federal).
(d) Financial Statements and Reports. The Holding Company has
delivered to Neodesha accurate and complete copies of the audited
Consolidated Balance Sheet at the close of the Holding Company's audit
year in each of the years 1995, 1996 and 1997 (collectively, the
"Balance Sheets"); and its Consolidated Statements of Earnings,
Consolidated Statements of Stockholders' Equity, Consolidated
Statements of Cash Flows and the notes pertaining to the above for
each of the fiscal years then ended, in each case accompanied by the
report thereon of the firm of independent certified public accountants
who examined such statements. The Balance Sheets and the related
Consolidated Statements of Earnings, Consolidated Statements of
Stockholders' Equity, Consolidated Statements of Cash Flows and notes
thereto for the Holding Company fairly present the consolidated
financial position of the Holding Company as of their respective
dates, and the consolidated results of its operations and consolidated
changes in its cash flows for the periods indicated, all in accordance
with generally accepted accounting principles on a basis consistent
with
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prior periods, except as otherwise stated therein or as required by
federal or state laws or regulations.
(e) Absence of Certain Changes. Since the date of the most recent
Balance Sheet delivered or to be delivered pursuant to subparagraph
(d) above, and except as set forth in Exhibit 15E hereto, neither the
Holding Company nor First Federal has undergone any material adverse
change in its condition (financial or otherwise), properties, assets,
liabilities, business or operations, other than changes in the
ordinary course of business which have not been materially adverse to
the Holding Company and First Federal, taken as a whole, provided that
changes in the economy of the United States of America or Kansas
generally or the thrift industry in Kansas (including, without
limitations, general changes in the availability of credit to
financial institutions, general changes in the real estate industry,
general changes in interest rates, money supply levels or the discount
rate of the Federal Reserve System) and changes in the financial
condition, results of operations or assets of the Holding Company and
First Federal, its subsidiaries and joint ventures, taken as a whole,
that are caused directly or indirectly, substantially and primarily by
such changes in the United States or Kansas economy or are applicable
generally to the thrift industry in Kansas, shall not be deemed to be
material adverse changes for purposes of this Section 15(e).
(f) FDIC Insurance. First Federal's accounts are insured up to
applicable limits by the FDIC and First Federal has paid all premiums
required to be paid and is in substantial compliance with the
applicable insurance regulations of the FDIC.
(g) Litigation. Except as otherwise disclosed in Exhibit 15G
hereto, there are no judicial or administrative actions, suits,
proceedings or investigations pending or, to the knowledge of the
Holding Company or First Federal, threatened, which might result in
any
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materially adverse change in the condition (financial or otherwise),
properties, assets, business or operations of the Holding Company and
First Federal, taken as a whole, or which seek to invalidate or enjoin
this Agreement or the Plan or any action taken or to be taken in
connection herewith or therewith.
(h) Compliance with Laws; Government Authorizations. Except as
otherwise described in Exhibit 15H hereto, the Holding Company and
First Federal are in compliance in all material respects with all
statutes, laws, ordinances, rules, regulations, judgments, orders and
decrees which apply to their business or properties. All permits,
concessions, grants, franchises, licenses and other governmental
authorizations and approvals necessary for the conduct of the business
of the Holding Company and First Federal have been duly obtained and
are in full force and effect, and there are no proceedings pending or,
to the knowledge of the Holding Company or First Federal, threatened,
which may result in the revocation, cancellation or suspension, or any
materially adverse modification, of any thereof. The consummation of
the Merger Conversion and the other transactions contemplated hereby
and by the Plan will not result in any such revocation, cancellation,
suspension or modification.
(i) Disclosure. Neither this Agreement, the Plan, the Exhibits
hereto, nor any letter, certificate or other document furnished by the
Holding Company or First Federal to Neodesha, insofar as it relates to
the Holding Company or First Federal and their respective operations,
properties, financial condition or prospects, contains any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements contained herein and therein not
misleading. There is no fact relating specifically to the Holding
Company or First Federal or any of its or their respective operations,
properties, financial
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condition or prospects known to the Holding Company or First Federal
which materially adversely affects, or, to the knowledge of the
Holding Company or First Federal, in the future may materially
adversely affect, the conditions, properties, assets, liabilities,
business or operations of the Holding Company or First Federal which
have not previously been disclosed in writing to Neodesha.
(j) Proxy Statement/Prospectus. At the time the Proxy
Statement/Prospectus is mailed to eligible members of Neodesha and at
all times subsequent to such mailing, up to and including the time of
the completion of the sale of Holding Company Common Stock to be sold
in the Merger Conversion, such Proxy Statement/Prospectus (including
any supplements thereto), with respect to all information relating
specifically to the Holding Company or First Federal and provided to
Neodesha by the Holding Company or First Federal expressly for
inclusion in the Proxy Statement/Prospectus, will:
(a) comply in all material respects with applicable
provisions of the 1934 Act and the rules and regulations
thereunder and the rules and regulations of the OTS; and
(b) not contain any statement which, at the time and in
light of the circumstances under which it is made, is false or
misleading with respect to any material fact or omits to state
any material fact required to be stated therein or necessary in
order to make the statements therein not false or misleading, or
necessary to correct any statement in an earlier communication
with respect to such matters which has become false or
misleading.
16. Representations and Warranties of Neodesha. Neodesha hereby
represents and warrants the following, the truth and accuracy of each of which
shall constitute a condition precedent to the
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obligations of First Federal and the Holding Company hereunder. All
representations and warranties of Neodesha are as of the date of this Agreement
and through the Closing Date, unless such representations and warranties refer
to a specified date.
(a) Organization and Standing. Neodesha is a mutual savings and
loan association duly chartered and validly existing under the laws of
the United States of America. Neodesha has no subsidiaries. Neodesha
has all requisite corporate power and authority and is duly qualified
and licensed to own, lease and operate its properties and to carry on
its business as now being conducted. The savings accounts of Neodesha,
to the extent insurable, are insured by the FDIC. The Charter and
Bylaws of Neodesha, copies of which are attached hereto as Exhibit
16A, are complete and correct as of the date of this Agreement.
(b) Capitalization. As a mutual savings and loan association,
Neodesha has no shares of capital stock authorized, issued or
outstanding.
(c) Authority for Agreement. Neodesha has full and requisite
corporate power and authority to execute and deliver this Agreement
and the Plan, and, subject to the requisite approval of the members of
Neodesha and federal regulatory authorities (including, without
limitation, the OTS and the U.S. Department of Justice and the Federal
Trade Commission under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976), to consummate the Merger Conversion and to carry out its
obligations hereunder and thereunder. The execution and delivery of
this Agreement and the Plan, and the consummation of the Merger
Conversion and the other transactions contemplated hereby and thereby,
have been duly authorized by the Board of Directors of Neodesha, and,
subject to the requisite approvals outlined above, this Agreement and
the Plan constitute valid and legally binding obligations of Neodesha
enforceable in accordance with their terms. The execution and delivery
of this
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Agreement and the Plan and the consummation of the Merger Conversion
and the other transactions contemplated hereby and thereby will not
conflict with or result in any violation of, or constitute a default
under, any provision of the Charter or Bylaws of Neodesha, or any
material mortgage, indenture, lease, agreement (including, but not
limited to, any agreement with any governmental agency or
instrumentality having jurisdiction over the business or properties of
Neodesha) or other material instrument, permit, concession, grant,
franchise, license, judgment, order, decree, statute, law, ordinance,
rule or regulation applicable to Neodesha, or any of its or their
respective properties. For purposes of this paragraph, a material
mortgage, indenture, lease, agreement, instrument, permit, concession,
grant, franchise or license excludes any mortgage, indenture, lease,
agreement, instrument, permit, concession, grant, franchise or license
having a term expiring less than six months from the date of this
Agreement or which does not require the annual expenditure of more
than $50,000 (but shall include any mortgage, indenture, lease,
agreement, instrument, permit, concession, grant, franchise or license
pursuant to which credit has been extended by Neodesha).
(d) Financial Statements. Neodesha has delivered to the Holding
Company accurate and complete copies of the audited Consolidated
Statement of Financial Condition at the close of its audit year in
each of the years 1995, 1996 and 1997 (collectively, the "Balance
Sheets"); and its Consolidated Statements of Operations, Consolidated
Statements of Retained Income, Consolidated Statements of Cash Flows
and the notes pertaining to the above for each of the fiscal years
then ended, in each case accompanied by the report thereon of the firm
of independent certified public accountants who examined such
statements. The Balance Sheets and the related Consolidated Statements
of Operations, Consolidated
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Statements of Retained Income, Consolidated Statements of Cash Flows
and notes thereto for Neodesha fairly present, or upon delivery will
fairly present, the consolidated financial position of Neodesha as of
their respective dates, and the consolidated results of its operations
and consolidated changes in its cash flows for the periods indicated,
all in accordance with generally accepted accounting principles on a
basis consistent with prior periods, except as otherwise stated
therein or as required by federal or state laws or regulations. The
audits of Neodesha have been conducted in accordance with generally
accepted auditing standards. Neodesha has delivered or will deliver to
the Holding Company upon written request thereof, accurate and
complete copies of the Auditor's Reports on Internal Control for each
of the fiscal years of the Balance Sheets.
(e) Absence of Certain Changes. Since the date of the most recent
Balance Sheet delivered or to be delivered pursuant to subparagraph
(d) above, and except as set forth in Exhibit 16E hereto, neither
Neodesha nor any joint venture of Neodesha has:
(i) undergone any material adverse change in its condition
(financial or otherwise), properties, assets, liabilities,
business or operations, other than changes in the ordinary course
of business which have not been materially adverse to Neodesha
and its joint ventures, taken as a whole, provided that changes
in the economy of the United States of America or Kansas
generally or the thrift industry in Kansas (including, without
limitations, general changes in the availability of credit to
financial institutions, general changes in the real estate
industry, general changes in interest rates, money supply levels
or the discount rate of the Federal Reserve System) and changes
in the financial condition, results of operations or assets of
Neodesha that are caused directly or indirectly, substantially
and primarily by such
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changes in the United States or Kansas economy or are applicable
generally to the thrift industry in Kansas, shall not be deemed
to be material adverse changes for purposes of this Section
16(e)(i); and
(ii) except as heretofore disclosed to the Holding Company
in writing, incurred any indebtedness for borrowed money or
issued or sold any debt securities, or made any commitments with
respect to the foregoing, other than in the ordinary course of
the business of Neodesha or its joint ventures and not exceeding
an aggregate of $100,000.
(f) Tax Matters. Neodesha has duly and properly filed all
federal, state, local and other tax returns required to be filed by it
and has made timely payments of all taxes shown by such returns to be
due and payable, or which are otherwise due and payable, whether
disputed or not; the current status of audits of such returns by the
Internal Revenue Service and other applicable agencies is as set forth
in Exhibit 16F; and there is no agreement by Neodesha for the
extension of time for the assessment or payment of any taxes payable.
Neodesha has provided or will provide to the Holding Company
complete and correct copies of all such tax returns for the fiscal
years ended 1994, 1995, 1996 and 1997.
(g) FDIC Insurance. Neodesha's accounts are insured up to
applicable limits by the FDIC and Neodesha has paid all premiums
required to be paid and is in substantial compliance with the
applicable insurance regulations of the FDIC.
(h) Examination Reports. Neodesha will provide to the Holding
Company complete and correct copies of (i) all examination reports by
the OTS or FDIC forwarded to Neodesha during the calendar years 1994,
1995, 1996 and 1997 and through the Closing Date, (ii) any
correspondence between Neodesha and such agencies relating thereto
during such periods,
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and (iii) any agreements, arrangements or understandings between
Neodesha and such agencies entered into as a result of matters raised
in such examination reports or correspondence (or summaries of all
oral agreements, arrangements or understandings with such agencies).
(i) Litigation. Except as otherwise disclosed in Exhibit 16I
hereto, there are no judicial or administrative actions, suits,
proceedings or investigations pending or, to Neodesha's knowledge
threatened, which might result in any materially adverse change in the
condition (financial or otherwise), properties, assets, business or
operations of Neodesha or which seek to invalidate or enjoin this
Agreement or the Plan or any action taken or to be taken in connection
herewith or therewith.
(j) Compliance with Laws; Government Authorizations. Except as
otherwise described in Exhibit 16J hereto, Neodesha is in compliance
in all material respects with all statutes, laws, ordinances, rules,
regulations, judgments, orders and decrees which apply to its business
or properties. All permits, concessions, grants, franchises, licenses
and other governmental authorizations and approvals necessary for the
conduct of the business of Neodesha have been duly obtained and are in
full force and effect, and there are no proceedings pending or, to
Neodesha's knowledge, threatened which may result in the revocation,
cancellation or suspension, or any materially adverse modification, of
any thereof. The consummation of the Merger Conversion and the other
transactions contemplated hereby and by the Plan will not result in
any such revocation, cancellation, suspension or modification.
(k) Disclosure. Neither this Agreement, the Plan, the Exhibits
hereto, nor any letter, certificate or other document furnished by
Neodesha to the Holding Company, insofar as it
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relates to Neodesha or its joint ventures and their respective
operations, properties, financial condition or prospects, contains any
untrue statement of a material fact or omits to state a material fact
necessary to make the statements contained herein and therein not
misleading. There is no fact relating specifically to Neodesha, its
joint ventures or any of its or their respective operations,
properties, financial condition or prospects known to Neodesha which
materially adversely affects, or, to the knowledge of Neodesha, in the
future may materially adversely affect, the conditions, properties,
assets, liabilities, business or operations of Neodesha which have not
previously been disclosed in writing to the Holding Company.
(l) Proxy Statement/Prospectus. At the time the Proxy
Statement/Prospectus is mailed to the members of Neodesha for the
solicitation of proxies for the approval of the Merger Conversion and
at all times subsequent to such mailings up to and including the time
of the completion of the sale of the Common Stock of the Holding
Company to be sold in the Merger Conversion, such Proxy
Statement/Prospectus (including any supplements thereto), with respect
to all information set forth therein relating to Neodesha, this
Agreement or the contemplated transactions, will:
(a) comply in all material respects with applicable
provisions of the 1934 Act and rules and regulations thereunder
and the rules and regulations of the OTS; and
(b) not contain any statement which, at the time and in
light of the circumstances under which it is made, is false or
misleading with respect to any material fact or omit to state any
material fact required to be stated therein or necessary in order
to make the statements therein not false or misleading, or
necessary to correct any statement in an earlier communication
with respect to the
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solicitation of a proxy for the same meeting or subject matter
which has become false or misleading.
(m) Employee Benefit Plans. All employee benefit plans operating
for the benefit of employees of Neodesha are in compliance with the
applicable provisions of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), and the rules and regulations
promulgated under ERISA. The present value of all benefits vested
under each such employee benefit plan does not exceed the value of the
assets of such plans allocable to such vested benefits. Neither any
such plan, any trust created thereunder nor any trustee or
administrator thereof has engaged in a "prohibited transaction," as
defined in ERISA, which may materially adversely affect the condition,
financial or otherwise, of Neodesha.
(n) Environmental Matters. Neodesha has not received any notice,
citation, claim, assessment, proposed assessment or demand for
abatement alleging that it (either directly or as a
successor-in-interest in connection with the enforcement of remedies
to realize the value of properties serving as collateral for
outstanding loans) is responsible for the correction or clean-up of
any condition resulting from the violation of any law, ordinance or
other governmental regulation regarding environmental health matters.
Neodesha has not emitted, generated, disposed of or stored any toxic
or hazardous substances and materials, and no such substances or
materials have been emitted, generated, disposed of or stored on any
property which is owned by Neodesha or in respect of which Neodesha
may be responsible or incur liability, in any manner that violates or,
after the lapse of time may violate, any presently existing federal,
state or local law or regulation, United States or foreign, governing
or pertaining to such substances which would have a material adverse
effect on the business, operations, properties, assets or financial
condition of Neodesha. To
19
the best information and belief of Neodesha, none of the real
properties which is owned by Neodesha or in respect of which Neodesha
may be responsible or incur any liability contains any asbestos and
there are no underground storage tanks on or under any such premises,
except as set forth in Schedule 16(n).
17. Covenants of the Holding Company and First Federal.
(a) Conduct of Business. Unless otherwise agreed to in writing by
Neodesha, from the date hereof until the Merger Conversion shall
become effective, the Holding Company and First Federal will:
(i) carry on its business in, and only in, the usual,
regular and ordinary course and, to the extent consistent with
such business, use all reasonable efforts to preserve intact its
present business organization;
(ii) not take, or permit to be taken, any action which would
cause the representations and warranties contained in Paragraph
15 of this Agreement to be inaccurate in any material respect as
of the Closing Date referred to in this Agreement;
(iii) promptly advise Neodesha in writing of any materially
adverse change in the condition (financial or otherwise),
operations or business of the Holding Company or First Federal,
its subsidiaries or joint ventures;
(iv) promptly advise Neodesha in writing of any
correspondence or communication with any governmental agency
having jurisdiction over the Holding Company or First Federal
relating to any examination, report, inquiry or investigation of
the Holding Company or First Federal;
20
(v) not take any action for or on behalf of any subsidiary
or cause any such action to be taken which would result in a
material breach of this Agreement or any provision hereof if such
action were taken by the Holding Company and/or First Federal
directly; and
(vi) cooperate with Neodesha in the preparation of all
information and materials reasonably requested by Neodesha or
necessary in order to effectuate the transactions contemplated by
this Agreement and the Plan, including (a) the preparation of
proxy materials for mailing to stockholders entitled to vote on
the Merger Conversion, if applicable; (b) the filing of all
required or reasonably requested materials with the appropriate
regulatory authorities; (c) cooperating with Neodesha in
obtaining all required regulatory approvals; (d) obtaining a
comfort letter from its accounting firm for use in connection
with transactions referred to herein; and (e) mailing proxy and
stock offering materials to members of Neodesha and others upon
receipt of required regulatory approvals.
(b) Advisory Board. First Federal shall cause the Resulting
Institution to establish an advisory board comprised of those persons
serving as directors of Neodesha immediately prior to the Closing Date
who desire to serve on such Advisory Board, for the purpose of
consulting with management of the Resulting Institution concerning the
operations of the Resulting Institution's offices in the Neodesha
area. The Resulting Institution will compensate members of such
advisory board in the amount of $1,000 per annum. Subject to 12 C.F.R.
Section 571.5(d)(5), it is the present intent of First Federal to
continue such advisory board on a year to year basis for up to a five
year period.
21
18. Covenants of Neodesha.
(a) Conduct of Business. Unless otherwise agreed to in writing by
the Holding Company or First Federal, from the date hereof until the
Merger Conversion shall become effective, Neodesha will:
(i) carry on its business in, and only in, the usual,
regular and ordinary course and, to the extent consistent with
such business, use all reasonable efforts to preserve intact its
present business organization;
(ii) not amend its Charter or Bylaws, except as may be
requested by counsel for First Federal for the purpose of
effectuating the Merger Conversion;
(iii) not, without the prior written approval of the Holding
Company or First Federal, merge or consolidate with, or negotiate
with or agree to merge or consolidate with, or purchase
substantially all the assets of, or otherwise acquire any
business of, any corporation, partnership, association or other
business organization or division thereof, except as contemplated
hereby;
(iv) not solicit, directly or indirectly, any offer to merge
with or acquire Neodesha;
(v) not, without the prior written approval of the Holding
Company or First Federal, acquire or sell any contracts for the
purchase or sale of financial or other futures or any put or call
options relating to cash, securities or any commodities
whatsoever, except in the ordinary course of business, consistent
with past practice, to maintain or adjust existing hedge
positions against liabilities;
(vi) not take, or permit to be taken, any action which would
cause the representations and warranties contained in Paragraph
16 of this Agreement to be
22
inaccurate in any material respect as of the Closing Date
referred to in this Agreement;
(vii) promptly advise the Holding Company or First Federal
in writing of any materially adverse change in the condition
(financial or otherwise), operations or business of Neodesha or
its joint ventures;
(viii) promptly advise the Holding Company or First Federal
in writing of any correspondence or communication with any
governmental agency having jurisdiction over Neodesha relating to
any examination, report, inquiry or investigation of Neodesha;
(ix) not take any action for or on behalf of any other
entity or cause any such action to be taken which would result in
a material breach of this Agreement or any provision hereof if
such action were taken by Neodesha directly; and
(x) cooperate with the Holding Company and First Federal in
the preparation of all information and materials reasonably
requested by the Holding Company or First Federal or necessary in
order to effectuate the transactions contemplated by this
Agreement and the Plan, including (a) the preparation of proxy
materials for mailing to members entitled to vote on the Merger
Conversion; (b) the filing of all required or reasonably
requested materials with the appropriate regulatory authorities;
(c) obtaining all required regulatory approvals; (d) obtaining a
comfort letter from its accounting firm for use in connection
with transactions referred to herein; and (e) mailing proxy and
stock offering materials to members and others upon receipt of
required regulatory approvals.
23
(b) Access and Information. Neodesha shall give, and shall use
its best efforts to cause any joint ventures to give, to the Holding
Company or First Federal and its representatives full access, during
normal business hours and upon reasonable notice, to its properties,
books, records, contracts and commitments, and will furnish promptly
to the Holding Company or First Federal all such information and
documents relating to its properties and businesses as the Holding
Company or First Federal shall reasonably request, including all
interim financial statements and reports as they are prepared and
become available; provided, however, that any such review will not
unduly interfere with the conduct of Neodesha's business and provided
further that the right of access and examination granted hereby is
subject to the requirements of financial privacy laws or similar laws
relating to account holders and other records.
(c) Compensation. Neodesha shall not, without the prior written
approval of the Holding Company or First Federal, which approval shall
not be unreasonably withheld, increase the compensation payable to any
director, officer or employee from the amount payable as of January 1,
1998, except for increases in the ordinary course of business.
19. Conditions Precedent to the Obligations of Neodesha. The
obligations of Neodesha under this Agreement shall be subject to fulfillment, at
or prior to the Closing Date, of each of the following conditions (unless waived
in writing by Neodesha in the manner provided in Paragraph 21 hereof):
(a) Approval by Members. This Agreement and the Plan shall have
been duly approved by the affirmative vote of the members of Neodesha
in accordance with applicable law.
24
(b) Governmental Consents; No Governmental Action. All requisite
consents and final approvals necessary for consummation of the Merger
Conversion by applicable regulatory authorities shall have been
obtained and all waiting or notice periods under applicable law shall
have expired. There shall not be pending or threatened any action,
proceeding or investigation by the United States Government or any
state government or any department or agency of either of the
foregoing, for any injunction, writ, preliminary restraining order, or
for any order of any court or governmental agency, domestic or
foreign, of competent jurisdiction, directing or requesting that the
Merger Conversion or any of the other transactions contemplated by
this Agreement or the Plan or any of them not be consummated, or
otherwise challenging the legality of any thereof. There shall not
have been issued and remain in effect any such injunction, writ,
preliminary restraining order, or such other order, nor shall any such
action or other proceeding be pending or threatened before any court
or governmental agency in which it is sought to obtain other relief in
connection with the Merger Conversion or such other transactions
contemplated hereby or by the Plan.
(c) Representations, Warranties and Covenants; Performance by the
Holding Company and First Federal. The representations, warranties and
covenants of the Holding Company and First Federal contained in
Paragraphs 15 and 17 of this Agreement shall be true and correct in
all material respects at and as of the Closing Date, with the same
force and effect as though made at and as of the Closing Date, except
where such representations, warranties and covenants speak as of a
specified date. The Holding Company and First Federal shall duly
perform and comply with all agreements and conditions required by this
Agreement to be complied with prior to or at the Closing Date. The
Holding Company and
25
First Federal shall each have delivered to Neodesha a certificate,
dated as of the Closing Date, and signed by the President or Executive
Vice President thereof, to the foregoing effect.
(d) Compliance with the Plan. All conditions and requirements of
the Plan shall have been complied with and satisfied including,
without limitation, the sale of all required shares of common stock
offered by the Holding Company pursuant to the Plan ("Conversion
Stock").
20. Conditions Precedent to the Obligations of the Holding Company and
First Federal. The obligations of the Holding Company and First Federal under
this Agreement shall be subject to the fulfillment, at or prior to the Closing
Date, of each of the following conditions (unless waived in writing by the
Holding Company or First Federal in the manner provided in Paragraph 21 hereof):
(a) Approval by Members. This Agreement and the Plan shall have
been duly approved by the requisite vote of the members of Neodesha in
accordance with applicable law. The Merger Conversion shall have been
duly approved by the requisite vote of the stockholders of the Holding
Company, if applicable.
(b) Governmental Consents; No Governmental Action. All requisite
consents and final approvals necessary for consummation of the Merger
Conversion by applicable regulatory authorities shall have been
obtained, and all waiting or notice periods under applicable law shall
have expired. There shall not be pending or threatened any action,
proceeding or investigation by the United States Government or any
state government or any department or agency of either of the
foregoing, for any injunction, writ, preliminary restraining order, or
for any order of any court or governmental agency, domestic or
foreign, of competent jurisdiction, directing or requesting that the
Merger Conversion or any of the
26
other transactions contemplated by this Agreement or the Plan or any
of them not be consummated, or otherwise challenging the legality of
any thereof. There shall not have been issued and remain in effect any
such injunction, writ, preliminary restraining order or such other
order, nor shall any such action or other proceeding be pending or
threatened before any court or governmental agency in which it is
sought to obtain other relief in connection with the Merger Conversion
or such other transactions contemplated hereby or by the Plan.
(c) Representations, Warranties and Covenants; Performance by
Neodesha. The representations, warranties and covenants of Neodesha
contained in Paragraphs 16 and 18 of this Agreement shall be true and
correct in all material respects at and as of the Closing Date, with
the same force and effect as though made at and as of the Closing
Date, except where such representations, warranties and covenants
speak as of a specified date. Neodesha shall have duly performed and
complied with all agreements and conditions required by this Agreement
to be complied with by it prior to or at the Closing Date. Neodesha
shall have delivered to the Holding Company or First Federal a
certificate, dated as of the Closing Date, and signed by the President
thereof, to the foregoing effect.
(d) Tax-Free Reorganization. The Holding Company or First Federal
shall have received a formal ruling from the Internal Revenue Service
or an opinion of counsel that the transactions contemplated herein
constitute a tax-free reorganization to the Holding Company, First
Federal and Neodesha pursuant to the applicable provisions of the
Internal Revenue Code of 1986.
27
(e) Compliance with the Plan. All conditions and requirements of
the Plan shall have been complied with and satisfied including,
without limitation, the sale of all Conversion Stock offered by the
Holding Company pursuant to the Plan.
21. Termination, Amendment and Waiver.
(a) Termination. This Agreement and the Plan may be terminated,
and the Merger Conversion abandoned, at any time prior to the Closing
Date (whether before or after the approval thereof by the members of
Neodesha and, if applicable, stockholders of the Holding Company and
First Federal):
(i) by mutual consent of the Boards of Directors of the
Holding Company, First Federal and Neodesha evidenced by
appropriate resolutions;
(ii) by the Board of Directors of Neodesha if (A) the
representations, warranties, covenants or conditions precedent
set forth in Paragraphs 15, 17 and 19 hereof shall not be
accurate and satisfied in all material respects, (B) any
application for approval of or consent to the Merger Conversion
filed with any governmental agency has been denied and such
denial has not been withdrawn within 60 days, or (C) the Merger
Conversion is not consummated by December 31, 1998; and
(iii) by the Holding Company and First Federal if (A) the
representations, warranties, covenants or conditions precedent
set forth in Paragraphs 16, 18 and 20 hereof shall not be
accurate and satisfied in all material respects, (B) any
application for approval of or consent to the Merger Conversion
filed with any governmental agency has been denied and such
denial has not been withdrawn within 60 days, or (C) the Merger
Conversion is not consummated by December 31, 1998.
28
(b) Amendment. This Agreement may be amended by action of the
Boards of Directors of the parties at any time before or after
approval of this Agreement by the members of Neodesha and, if
applicable, the stockholders of the Holding Company and First Federal,
provided that after any such approval, no amendment shall be made
which shall affect the rights of the members or stockholders giving
such approval in a manner which, in the judgment of the Board of
Directors of the party the members or stockholders of which have given
such approval, is materially adverse to such members or stockholders
without the further approval of such members or stockholders. This
Agreement may not be amended except by an instrument in writing duly
executed and delivered on behalf of each of the parties hereto.
(c) Waiver. At any time prior to the Closing Date, the Board of
Directors of the Holding Company, First Federal or Neodesha may each
on their own behalf waive (i) any inaccuracies in the representations
and warranties of any other party contained herein or in any document
or instrument pursuant hereto and (ii) compliance with any of the
agreements, covenants or conditions contained herein. Any agreement on
the part of a party hereto to any such waiver shall be valid only if
set forth in an instrument in writing duly executed and delivered on
behalf of such party.
22. Miscellaneous.
(a) Confidentiality. Except to the extent required by law or the
rules or regulations of any governmental agency or instrumentality in
connection with the preparation of a proxy statement, prospectus or
tax ruling (tax opinion), the filing and prosecution of applications
for approval of the transactions contemplated hereby, or the
requirements of the federal securities laws, all information
concerning each of the parties hereto which is furnished to
29
the other party hereto, will be held in strict confidence by it, and
all copies thereof will be returned promptly to the respective party
at its request in the event the Merger Conversion is not consummated.
(b) Amendment. First Federal shall assume and bear 662/3% of all
reasonable expenses, costs and fees incurred by each party in the
preparation and execution of this Agreement and the Plan and in
complying with the agreements, covenants, and conditions herein and
therein, including the preparation, printing and mailing of the Proxy
Statement/Offering Prospectus, whether or not the Merger Conversion
contemplated hereby and thereby shall be consummated, with the
remainder of such expenses (which remainder shall not exceed $150,000)
to be borne by Neodesha; provided, however, that in the event of a
termination of this Agreement by any party hereto otherwise than in
accordance with Section 21(a) hereof, or of a material breach of this
Agreement by any party hereto which is not waived by the other party
or cured by the breaching party within 30 days after notice thereof to
the breaching party, all such costs, expenses and fees of the parties
shall be assumed and borne by the breaching party.
(c) Finder's and Other Fees. Except with respect to commissions,
discounts and similar fees which may be paid or allowed to securities
firms in connection with the sale of stock in the Merger Conversion,
each party represents that it has neither incurred nor is liable for
any finder's, broker's or other similar fees to any third party
whatsoever as a result of the execution and delivery of this Agreement
or the Plan or the consummation of the transactions contemplated
hereby or thereby and each party hereby indemnifies and holds harmless
each other party hereto against any claim for a broker's or finder's
fee based on alleged retention of a broker or finder by it.
30
(d) Further Acts. The parties hereto hereby agree to perform, at
any time and from time to time, any and all necessary acts, or to
prepare and to execute or cause to be executed any and all instruments
in writing, which shall be advisable or necessary to implement fully
the intent and terms of this Agreement, including but not limited to
applications and other documentation required to obtain approvals of
the Merger Conversion and the Plan (including proxy materials and
offering materials contemplated by the Plan) and such conveyances and
assignments as may be required. In this regard First Federal and its
counsel shall assume responsibility for the preparation of all
applications, proxy statements, offering circulars and other
documentation required to facilitate and obtain the requisite
regulatory approval of this Merger Conversion, and Neodesha and its
counsel shall assist First Federal and its counsel in preparing such
applications and documentation and shall promptly furnish to First
Federal and its counsel all information reasonably requested in
connection with the preparation of the applications, proxy statements,
offering circulars and related documents. All such information shall
be accurate and complete in all material respects.
(e) Notices. All notices and other communications pursuant to
this Agreement shall be deemed to have been duly given if in writing
and delivered personally or if mailed, first class, postage pre-paid,
as follows:
If to Neodesha, to: with a copy to:
Xxxxxxxx X. Xxxxxx Xxxxxx Xxxxx, Esq.
President The Xxxxx Law Firm
Neodesha Savings and Loan Association 000 Xxxx Xxxxxx
000 Xxxx Xxxxxx X.X. Xxx 000
X.X. Xxx 000 Xxxxxxxx, Xxxxxx 00000-0000
Xxxxxxxx, Xxxxxx 00000-0000
31
If to the Holding Company
or First Federal, to: with a copy to:
Xxxxx X. Xxxxxxx Xxxxxx X. Xxxxxxxxx, P.C.
President and Chief Executive Officer Silver, Xxxxxxxx & Taff, L.L.P.
First Independence Corporation 0000 Xxx Xxxx Xxx., N.W.,
Myrtle & Sixth Streets 0xx Xxxxx Xxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxx 00000 Xxxxxxxxxx, X.X. 00000
(f) Headings; Entire Agreement. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement. This Agreement constitutes
the entire agreement between the parties hereto and supersedes and replaces
any prior written or oral agreements or understandings between them
relating to the subject matter hereof.
(g) Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which
shall constitute one and the same instrument.
(h) Binding Effect. This Agreement shall inure to the benefit and be
binding upon the successors of the Holding Company, First Federal and
Neodesha. This Agreement shall not otherwise be assignable by the Holding
Company, First Federal or Neodesha.
(i) Amendments. This Agreement and the Plan shall not be amended,
modified, changed or supplemented except by an instrument in writing signed
by the parties hereto.
(j) Survival of Warranties. The representations, warranties and
covenants contained herein shall not survive the Closing Date.
(k) Governing Law. This Agreement shall be governed by and construed
in accordance with the federal laws and regulations, except to the extent
certain matters may
32
be governed as a matter of law by the laws of the State of Delaware (as the
state of incorporation of the Holding Company).
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
NEODESHA SAVINGS & LOAN
ATTEST: ASSOCIATION, FSA
Xxxxx Xxxxxxxxx /s/ Xxxxxxxx X. Xxxxxx
-------------------- ---------------------------------
Xxxxxxxx X. Xxxxxx, President
ATTEST: FIRST FEDERAL SAVINGS & LOAN
ASSOCIATION OF INDEPENDENCE
Xxxx Xxxxxxxxx /s/ Xxxx X. Xxxxxxx
--------------------- ----------------------------------
Xxxxx X. Xxxxxxx, President and
Chief Executive Officer
ATTEST: FIRST INDEPENDENCE CORPORATION
Xxxx Xxxxxxxxx /s/ Xxxxx X. Xxxxxxx
---------------------- ----------------------------------
Xxxxx X. Xxxxxxx, President and
Chief Executive Officer
33
