Exhibit 10.6
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is made and entered into this
4th day of October, 2002, by and among Belle Plaine Service Corp. ("Company")
and the following entities or individuals, who collectively own 100% of the
common and preferred stock of the Company (collectively, "Sellers") ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇▇▇ Trust, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇▇▇ (▇▇▇), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇. ▇. ▇▇▇▇▇▇▇▇
(Trust), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Trust), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. &
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, Hearst ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (▇▇▇ Roll Over), ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Trust),
▇▇▇▇▇▇ Living Trust, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇
(▇▇▇), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ (TTEE), ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Trust), ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ (Trust), ▇▇▇ ▇▇▇▇▇▇ (Trust), ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.,
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Preferred Shares: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇; and Mahaska Investment
Company ("Buyer").
RECITALS:
A. Sellers own (i) 8091 shares (100%) of the no par value per share
Common Stock and 500 shares (100%) of the $330 par value per share
Preferred Stock of Company, the bank holding company parent of
Citizens Bank and Trust Company, an Iowa banking corporation located
in ▇▇▇▇▇▇ Iowa ("Bank"), which in turn owns all of the issued and
outstanding shares of the Common Stock of Bank.
▇. ▇▇▇▇▇▇▇ desire to sell all the shares of stock in Company held by them
(collectively, the "Stock") to Buyer, and Buyer desires to purchase
the Stock from Sellers pursuant to the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the Recitals and the mutual covenants
herein set forth, the parties hereto agree as follows:
3. Sale and Purchase of the Stock. At the Closing (as that term is defined
in paragraph 5 below), Sellers shall sell, assign and transfer to Buyer, and
Buyer shall acquire from Sellers, the Stock, on the terms and conditions set
forth herein. Sellers shall deliver to Buyer, at the Closing, their certificates
representing the Stock, with all such certificates duly endorsed in blank for
transfer, against payment of the Purchase Price (hereinafter defined).
4. Purchase Price. The purchase price ("Purchase Price") for the Stock
shall be determined and allocated as follows:
(a) $330 per share for the 500 shares of Preferred Stock of Company,
and
(b) the price per share for the 8091 shares of Common Stock of Company
shall be determined on the basis of the adjusted Shareholders' Equity
of the Company on the Valuation Date plus a purchase price premium of
$3,856,924 using the methodology set forth on Exhibit A attached
hereto and incorporated herein by this reference. The term "Valuation
Date" shall mean the last day of the month in which the last required
regulatory approval is received and any mandatory waiting periods have
expired.
5. Payment of Purchase Price. The Purchase Price shall be paid at Closing
by cashiers' check as follows:
(a) $165,000 plus any unpaid dividends to the owner of the 500 shares
of Preferred Stock of the Company.
(b) all fees and expenses for professional services, including but not
limited to $40,000 to Holder and Associates, for fees incurred on
behalf of Sellers and Company.
(c) $800 per share of Common Stock to the Sellers for their shares of
Common Stock of the Company.
(d) the remaining balance to Bankers Trust Company, Des Moines, Iowa
as escrow agent (the "Escrow Agent") to be held as specified in
paragraph 4 hereof.
6. Escrow. The Escrow Agent shall hold the escrowed portion of the Purchase
Price according to the provisions of this paragraph 4 and the Escrow Agreement
attached hereto as Exhibit B. By execution of this agreement each owner of the
Common Stock of the Company hereby designates Sellers' Representative (as set
forth in paragraph 22 hereof) as the agent for such Seller with full authority
to perform all acts on behalf of such Seller in regard to the Escrow Agreement,
including the execution of the Escrow Agreement, all decisions regarding
investment and distribution of the funds and payment of claims.
(a) Term. The escrowed portion of the purchase price shall be released
from escrow as follows: (i) one third upon the first anniversary of
the Closing Date; (ii) one half of the remainder upon the second
anniversary of the Closing Date and (iii) the remainder upon the third
anniversary of the Closing Date; provided, however, that if a tax
audit of the Company or the Bank has commenced prior to the expiration
of such three-year period, or litigation against the Company or Bank
has been threatened in writing or commenced prior to the expiration of
such three-year period, distributions from the escrow shall be
suspended and the escrow shall continue until final resolution of such
audit or until the date of final settlement or adjudication of any
litigation threatened in writing or commenced prior to the end of the
three-year period.
(b) Distributions to Buyer. Buyer may from time-to-time on not less
than sixty days' written notice to Sellers' Representative instruct
the Escrow Agent to pay to Buyer any amounts for which Buyer is
entitled to Indemnification pursuant to paragraph 20 hereof. If within
such sixty day notice period Sellers' Representative notifies the
Escrow Agent that Sellers' Representative questions the propriety of
the requested distribution to Buyer, the Escrow Agent shall hold any
such distribution until final resolution of any dispute pursuant to
order of the appropriate court or other means agreed to by Buyer and
Sellers' Representative.
(c) Distribution to Sellers. Upon termination of the Escrow Agreement
at the time specified in paragraph 4(a), the Escrow Agent shall
distribute any remaining amounts pro rata to the
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Sellers of the shares of Common Stock less one-half of the fees, costs
and expenses of the Escrow Agent.
(d) Fees, Costs and Expenses. One-half of the fees, costs and expenses
of the Escrow Agent shall be paid by Sellers and one-half by Buyer.
7. Closing Date. The closing of the transactions provided for herein (the
"Closing") shall occur at the offices of Ahlers, Cooney, Dorweiler, Haynie,
▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in Des Moines, Iowa, as soon as practicable after
completion of all conditions precedent, and within ten days of the Valuation
Date unless otherwise agreed in writing by the Seller's Representative and the
Buyer.
8. Resignations of Officers and Directors. Sellers agree that they shall
resign their positions as directors and officers of Company and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ shall resign as a director and officer of Bank effective as of the
Closing, and shall deliver to Buyer at the Closing such written resignations and
other documentation as is necessary or appropriate to effectuate such
resignations in accordance with the Articles of Incorporation and Bylaws of
Company and Bank and applicable law.
9. Representations and Warranties of Company. The Company represents and
warrants to Buyer:
(a) This Agreement and all other agreements and instruments
contemplated by this Agreement to which Company is a party or
signatory has been duly authorized, executed, and delivered by Company
and constitutes the legal, valid, and binding obligations of Company,
enforceable in accordance with their respective terms.
(b) There is no litigation, action, claim, proceeding, or governmental
investigation or examination pending or threatened against Company or
Bank which may have an adverse effect upon the Stock, Bank, Company,
the transactions contemplated by this Agreement, Company's ability to
perform Company's obligations hereunder, or upon the financial
condition or assets and properties of Bank or Company.
(c) The execution and performance of this Agreement will not result in
the creation of any lien, charge, restriction, claim, or encumbrance
whatsoever upon the Stock.
(d) No representation or warranty by Company in this Agreement or in
any certificate, schedule, exhibit, letter, financial document, or
other instrument furnished or to be furnished to Buyer or any of
Buyer's representatives pursuant hereto or in connection with the
transactions contemplated hereby, contains or will contain at the time
of furnishing any untrue statement of a material fact, or omits or
will omit to state at the time of furnishing a material fact necessary
in order to make the statements contained therein not misleading.
There is no information of a material nature concerning the Stock,
Company or Bank which has not heretofore been disclosed to Buyer in
writing, which information could have a material adverse effect upon
the transactions contemplated by this Agreement or upon the assets,
properties, or business and other operation and conduct of Bank or
Company.
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(e) Company has total authorized capital stock of 250,000 shares, no
par value per share, and 7.5 million shares of Preferred Stock, $330
par value per share. As of the date hereof, 8091 shares of Common
Stock and 500 shares of Preferred Stock of Company are issued and
outstanding. All of the issued and outstanding shares of Company are
validly issued, fully paid and nonassessable. As of the date of this
Agreement, other than the Buy-Sell Agreement between Company and
Sellers dated August 12, 1981, Company has no outstanding security,
option, warrant, right, agreement, understanding or commitment of any
kind entitling any person or persons to purchase, subscribe for, or
otherwise acquire (or relating to the voting of) any shares of capital
stock of Company. Within ten days of the date hereof, Company shall
provide to Buyer a copy of the existing Buy-Sell Agreement.
(f) Bank has total authorized capital stock of 10,000 shares,
consisting of shares of Common Stock, $100 par value per share. As of
the date hereof, 10,000 shares of Common Stock are issued and
outstanding. All of the issued and outstanding shares of Bank are
validly issued, fully paid and nonassessable. As of the date of this
Agreement, Bank has no outstanding security, option, warrant, right,
agreement, understanding or commitment of any kind entitling any
person or persons to purchase, subscribe for, or otherwise acquire (or
relating to the voting of) any shares of capital stock of Bank. Except
for a pledge of the shares of Common Stock of Bank to Bankers Bank,
Madison, Wisconsin to secure a loan to Company with a present balance
of approximately $2.7 million dollars, Company holds all shares of
Common Stock of Bank, free and clear of all liens, claims, demands,
restrictions on transferability, reservations, mortgages, security
interests, contracts of sale, options, voting agreements, voting
trusts, proxies, and all other restrictions, claims, or encumbrances
of any type or nature whatsoever. The aforesaid loan from Bankers Bank
is pre-payable in whole or in part at any time without penalty, and
the Company will accrue or pay interest on such loan through the
Closing Date.
(g) All federal, state, and local tax returns required to be filed by
Company or Bank have been correctly and timely filed, all taxes shown
thereby required to be paid have been paid, and such returns are
accurate and complete in all material respects in respect of all
taxes, levies, duties, license and registration fees, charges or
withholdings of any nature whatsoever, and to the extent its
liabilities for taxes have not been fully discharged, adequate
reserves have been established. Neither Company nor Bank is in default
in the payment of any taxes due and payable or on any assessments
received in respect thereof. Neither Company nor Bank will have at any
time any liability for taxes or for any interest, penalties, or fines
in respect thereof for or in respect of any period or periods up to
and including the Closing Date, except to the extent such liability is
reflected on the Statements of Condition included in the Company's
financial statements or relates to or arises out of operations after
such statements. Neither Company nor Bank has executed any agreement
extending the period for assessment and collection of any tax. No
deficiency assessment for any taxes or claim of liability therefor has
been made by any governmental agency against Company or Bank and, to
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the best of the knowledge of management of Company and Bank, no such
claim is contemplated.
(h) Company is a general business corporation duly organized and
validly existing under the laws of the State of Iowa, and is a
registered bank holding company under the Bank Holding Company Act of
1956, as amended. Company has all requisite power and authority to
own, lease and operate its properties and carry on its business as now
being conducted and has all licenses, permits, and governmental
authorizations and approvals necessary therefor. Accurate and complete
copies of Company's Articles of Incorporation and all amendments
thereto, certified by the Secretary of State of the State of Iowa as
of a date within ten (10) days of the date hereof, and a complete and
correct copy of the Bylaws of Company and all amendments thereto,
certified by the Secretary of Company as of a date within ten (10)
days of the date hereof, will be delivered to counsel for Buyer within
ten (10) days of the date hereof.
(i) Bank is an Iowa chartered bank, duly organized, validly existing
and in good standing under the laws of the State of Iowa. Bank has all
requisite power and authority to own, lease and operate its properties
and carry on its business as now being conducted and has all licenses,
permits, and governmental authorizations and approvals necessary
therefor, including, without limitation, insurance of its deposits by
the Federal Deposit Insurance Corporation all of which are in full
force and effect, and shall continue in full force and effect through
the Closing Date. Accurate and complete copies of Bank's Articles of
Incorporation and all amendments thereto, certified by the Secretary
of State of the State of Iowa as of a date within ten (10) days of the
date hereof will be delivered to counsel for Buyer within ten (10)
days of the date hereof. Bank does not have any Bylaws.
(j) Bank and Company have good and marketable title to their
respective assets (including other real estate), free and clear of all
liens, claims, easements, restrictions, reservations, leases,
mortgages, security interests, contracts of sale, options, and other
encumbrances, restrictions, or adverse claims of any type or nature
whatsoever, including, without limitation, claims or encumbrances of
any regulatory agency.
(k) The businesses of Bank and Company, have been conducted in the
ordinary course of business, and all books, records, and accounts of
Bank and Company are true, accurate, and complete in all material
respects and have been maintained in accordance with practices
generally used by banks and corporations chartered and/or organized
under the laws of the State of Iowa or the United States and located
in Iowa. Bank and Company have no material obligations, commitments,
indebtedness, or liabilities, contingent or otherwise, which are not
disclosed in the books, records, and accounts of Bank or Company, as
the case may be.
(l) Company has no subsidiaries other than Bank.
(m) Bank has no subsidiaries.
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(n) Regarding Bank's regulatory compliance examinations, Bank has no
material violations, and will have no material violations from the
date hereof to the Closing Date, of state or federal law or
regulation.
(o) The notes, evidences of indebtedness and agreements for the
payment of money, which are assets of Company and Bank, and their
related security documents, are each legal, valid and binding
obligations of the maker or obliger thereof, enforceable against such
maker or obliger in accordance with their terms. Notwithstanding the
foregoing, the Company does not warrant the collectibility of any
note, evidences of indebtedness or agreements for the payment of
money. A list of nonledger assets of Bank, including without
limitation, letters of credit and unfunded loan commitments is
attached hereto as Schedule 7(o).
(p) Bank and Company have timely filed all reports, registrations,
and statements, together with any amendments required to be made with
respect thereto, required by law or regulation with the appropriate
regulatory authorities, and will file all such reports as may be
required from the date of this Agreement through the Closing Date. As
of their respective dates, such reports complied or will comply in all
material respects with all the reporting and disclosure rules and
regulations of such regulatory authorities. None of such reports
contained or will contain any untrue statement of a material fact or
will 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 made, not misleading.
(q) Bank has timely filed all of the required information returns or
statements with the appropriate governmental authorities (federal,
state, and local), including, without limitation, the information
returns or statements required under the Internal Revenue Code of
1986, as amended. The information returns or statements are complete
and correct in all material respects, and there are no material
penalties or other liabilities due from Bank, or assessable against
Bank, with respect to such returns or statements. Bank has complied
with all applicable federal, state, and local laws, rules, and
regulations, including, without limitation, the requirements of
section 3406 of the Internal Revenue Code of 1986, as amended,
regarding the withholding of tax on payments made by Bank. Bank has no
material outstanding liability or unassessed potential liability to
any governmental agency for amounts which it was required to withhold
under applicable federal, state, and local laws, rules, and
regulations.
(f) All contracts, leases, subleases, or other agreements and
arrangements to which Bank and Company are parties are valid, binding,
and in full force and effect, will not be materially adversely
affected by the transactions contemplated by this Agreement, and there
is not under any of such agreements any material existing default or
any event which, with the lapse of time or notice by a third party, or
both, could result in such a default, nor has Bank or Company waived
any of their rights or options or exercised any of their options
thereunder. A list of all contracts, leases, subleases, or other
agreements and arrangements to which Bank and Company are parties and
which have
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terms of at least twelve (12) months is attached hereto as
Schedule 7(r).
(s) Bank and Company have obtained all licenses, permits, and
governmental approvals and orders required by applicable law or
governmental regulations necessary or appropriate in the conduct of
Bank's or Company's business. All items of real property, including
without limitation other real estate, and personal property, including
without limitation computer hardware and software, used by Bank or
Company are in good operating condition and repair (with the exception
of ordinary wear and tear), are suitable for the purposes for which
they are presently utilized, and substantially comply with all laws,
ordinances, regulations, and other governmental requirements now in
effect, including, without limitation, the Americans with Disability
Act of 1990 (42 U.S.C. Section 12101, et seq,) and all Environmental
Laws (as hereinafter defined), and, with the exception of the real
property in Waterloo described on Schedule 7(s), such properties are
not affected or threatened by any condemnation or eminent domain
proceeding. The term "Environmental Laws," as used herein, shall mean
all federal, Iowa, and local laws, including statutes, regulations,
ordinances, codes, rules, and other governmental restrictions and
requirements relating to the environment or hazardous substances,
including, without limitation, the Toxic Substances Control Act, the
Clean Air Act, the Clean Water Act, the Resource Conservation and
Recovery Act of 1976, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, the Superfund Amendments and
Reauthorization Act, all as amended, regulations of the U.S.
Environmental Protection Agency, and regulations of any state
department of natural resources or state environmental protection
agency, and orders issued by those agencies now or at any time
hereafter in effect prior to the Closing Date. Bank and Company have
been and will through the Closing Date comply with all applicable
Environmental Laws. Company shall provide to Buyer within thirty (30)
days hereof Phase I environmental site assessments satisfactory to
Buyer for any real property owned by Company or Bank which indicates
no environmental concern. For the Belle Plaine drive-through facility
and for any other property where the Phase I environmental site
assessment indicates the existence of an environmental concern, the
Bank and Company shall provide Buyer with a Phase II environmental
site assessment satisfactory to Buyer within thirty (30) days
following delivery of the Phase I environmental site assessments. All
environmental site assessments shall, at a minimum, comply with the
standards established by the Small Business Liability Relief and
▇▇▇▇▇▇▇▇▇▇ Revitalization Act. The cost of the environmental site
assessments will be divided equally between the Company and the Buyer.
Any remediation or other environmental response expense necessary to
bring any of the real estate into compliance with current
Environmental Laws shall be the sole expense of the Company. Company
and Bank shall provide all warranties and maintenance contracts for
personal property used by Bank or Company for Buyer's inspection and
review within ten (10) days hereof. Notwithstanding the foregoing, if
the cost of remediation exceeds $250,000, Seller may terminate this
Agreement or proceed with such remediation as Seller may decide in its
sole discretion.
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(t) Company shall make available to Buyer, within ten (10) days
hereof, a list of all persons employed by Bank which list shall
contain the positions, years of service and salaries of all such
employees. In addition, Company will make available to Buyer true,
correct and complete copies of each agreement, policy, plan or
obligation, if any, providing for sick leave, salaries, wages,
vacations, holidays, pensions, retirement benefits, profit sharing,
insurance, incentives, bonuses or other benefits or deferred
compensation for employees of Bank, whether written or oral and
whether or not legally binding. There is no unfunded liability of
Company or Bank or any accumulated funding deficiency under any such
agreement, policy, plan or obligation. Company and Bank are in
compliance with applicable laws regarding employment of employees and
retention of independent contractors, and are in compliance with
applicable employment tax laws. Except for the salary continuation
agreements with ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇,
neither Company nor Bank is a party to any written or oral salary
continuation agreement, employment agreement or consulting agreement
which is not terminable by Company or Bank upon 30 days or less
notice, without liability to Company or Bank. The salary continuation
agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (a true and correct copy of which will
be provided to Buyer)is fully funded in accordance with generally
accepted accounting principles to provide the benefit provided therein
commencing upon the Closing Date payable pursuant to the terms of such
agreement. Prior to Closing, Bank agrees to accrue an additional
amount over the amount previously budgeted for liability under the
salary continuation plans for ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ pursuant
to the calculations performed by ▇▇▇▇▇/▇▇▇▇▇▇ Consulting on Schedule
7(t) prorated to the Valuation Date.
(u) There are no properties, real or personal, tangible or
intangible, owned by Sellers, or any person or entity related to
Sellers, which are or will be used in the operation and conduct of
Bank or Company.
(v) The execution, delivery, and performance of this Agreement by
Company, and the consummation of the transactions contemplated by this
Agreement, will not constitute a breach, violation, default, create a
lien, or give rise to any right of termination, cancellation,
prepayment, or acceleration under the Articles of Incorporation or
Bylaws, if any, of Bank or Company, or under any law, rule, or
regulation, or any judgment, decree, order, governmental permit or
license, or any note, mortgage, indenture, deed of trust, license,
lease, agreement, or other instrument or obligation to which Bank or
Company is a party or by which either of them or any of their
respective properties or assets may be bound or affected. No consents,
approvals, or authorizations of, or declarations, filings, or
registrations with any other person, including any government
authority, are required to be obtained or made by Bank or Company in
connection with the execution, delivery, and performance by Bank and
Company of this Agreement, or the consummation by them of the
transactions contemplated hereby, except for the required regulatory
approvals referred to in this Agreement.
(w) Bank and Company have, in all respects, performed all material
obligations required to be performed by them to date, are
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not in default under, and no event has occurred which, with the lapse
of time or notice by a third party, or both, could result in a default
by Bank or Company under any outstanding indenture, mortgage,
contract, lease, or other agreement to which either of them is a party
or by which either of them is bound, except for any default or event
which would not result in and would not have consequences which result
in a material adverse change in their present or prospective financial
condition, business, or operations. Excluding the loan portfolio, none
of the presently unperformed contracts, agreements, understandings, or
leases by which Bank or Company is currently bound will result in a
loss thereunder that will materially and adversely affect their
present or prospective financial conditions, operations, or
businesses. Bank and Company are not subject to any charter or any
other corporate restriction, or any judgment, order, writ, injunction,
decree, rule, regulation, code, or ordinance which has not been
disclosed in writing to Buyer and which materially and adversely
affects, or might be expected to materially and adversely affect,
Bank's or Company's present or prospective financial condition,
business, or operation.
(x) Bank has no liability to pay deposits other than as shown on its
books.
(y) As of the Closing, there will be no unpaid charges, debts,
liabilities, claims, or obligations arising from the construction,
ownership, and/or operation of the premises of Bank or Company, or
other real estate owned by either Bank or Company, which could give
rise to any mechanic's or material men's or other statutory or
constitutional liens against any such real estate or any part thereof.
(z) Bank and Company have no known material contingent liability not
covered by insurance with respect to rights of indemnification from
Bank or Company for the benefit of any director, officer, employee, or
agent, or the heirs, executors, administrators, successors or assigns
thereof. Company is not aware of any facts which may or could result
in such a claim for indemnification from Bank or Company. Company and
Bank shall take all action necessary prior to the Closing Date to put
in place and pay for a "tail coverage" policy or similar policy with
its present liability insurer for its Directors and Officers Liability
Insurance for its current coverage. Such coverage shall remain in
force for one year if no claim is made within one year of the Closing
Date or until any matter is finally resolved which arises during such
one-year period.
(aa) Bank has not issued or sold any loan participations which might
expose Bank to direct or indirect recourse liability to the
participant, pursuant to any written or verbal agreements or
understandings with such participant.
(bb) Bank has properly and prudently performed all of its duties and
responsibilities under the Home Owners Loan Act of 1933 (12 U.S.C.
Section 1461 et seq.) (if applicable) and the Iowa Probate Code
(Chapter 633 of the Code of Iowa [2001]), as well as under all other
state and federal laws, rules, or regulations in connection with
Bank's acting in a fiduciary capacity.
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(cc) Bank is in material compliance with all disclosures and reporting
requirements relating to loans guaranteed by the Farm Service Agency
and the United States Small Business Association and there are no
deficiencies that would result in the cancellation of such government
guarantees; provided, however, that this representation shall not
apply to any deficiency attributable to the acts of Buyer.
(dd) Company has previously caused to be delivered to Buyer the
June 30, 2002, FDIC Reports of Condition and Reports of Income
regarding Bank, and the December 31, 2001, FR Y-6 and December 31,
2001, FR Y-9 regarding Company. All such reports and documents, and
all financial information and statements set forth or made therein, or
otherwise a part thereof, have been prepared in accordance with all
applicable laws and regulatory requirements and (except as modified
thereby), with generally accepted accounting principles consistently
applied, accurately present the financial conditions and results of
operations of Bank and Company as of the dates and for the periods
indicated, and are true, accurate, and complete in all material
respects. Company will furnish to Buyer a quarterly report for Bank
for each quarter subsequent to June 30, 2002, within forty-five (45)
days after the close of any such quarter and a semi-annual report for
Company for each semi-annual period subsequent to December 31, 2001,
within forty-five (45) days after the close of any such period.
(ee) Except as disclosed on Schedule 7(ee), since the date of the
reports and/or documents of Bank and Company referenced in
subparagraph (dd) immediately above, neither Bank nor Company has (i)
suffered any extraordinary losses in an amount material to the
operations of the business of Bank or Company, or waived or released
any rights or claims of value material to the operations of the
business of Bank or Company, or allowed any such rights to lapse; (ii)
made or become obligated to make capital expenditures, or entered into
commitments therefor, with respect to the business of Bank or Company;
(iii) experienced or suffered any material adverse change in their
businesses, operations, or assets (whether or not covered by
insurance), or condition, financial or otherwise, or results of
operations, materially adverse to the business of Bank or Company;
(iv) entered into any transaction, except in the ordinary course of
the business of Bank or Company, as the case may be; (v) received any
notice of claim asserted either against Bank or Company which could
have a material adverse effect on the operations of the business of
Bank or Company; (vi) incurred or agreed to incur any material
obligations outside the ordinary course of the business of Bank or
Company, as the case may be; (vii) increased any salaries or wages of
any of the directors, officers, employees, or other personnel of Bank
or Company; (viii) paid any bonus, pension, profit sharing, or
compensation plan payments; (ix) paid any debt, obligation, or
liability, other than current liabilities incurred in the ordinary
course of the business of Bank or Company, as the case may be; or (x)
made or become obligated to make any payment or distribution to the
shareholders of Bank or Company. For purposes of this paragraph (ff),
the term "material" means $25,000 or more.
(ff) The loan loss reserve maintained by Bank, including the portion
of the loan loss reserve pertaining to the loans which are presently
the subject of litigation, is presently in the process
-10-
of being increased by $315,000, and will be at least that much greater
than the present amount on the Valuation Date.
(gg) Neither the Company nor the Bank shall permit any material
adverse change in the quality, composition, or maturity of its assets,
deposits, or other liabilities, or in its business; provided, however,
that the following factors shall not be considered in determining what
shall constitute a material adverse change in the quality or
composition of assets, liabilities, or business of Company: (i)
changes in rates of return or yield received on various assets of the
Bank which changes are caused by general money market fluctuations;
and (ii) changes in interest rates paid by the Bank with respect to
its source of borrowed funds, including deposits, repurchase
agreements, and federal funds purchased, which changes are caused by
general money market fluctuations.
10. Representations and Warranties of Sellers. Each of the Sellers
represents and warrants to Buyer as follows:
(a) This Agreement and all other agreements and instruments
contemplated by this Agreement to which the Sellers are a party or
signatory have been duly authorized, executed, and delivered by each
of the Sellers and constitute the legal, valid, and binding
obligations of each of the Sellers, enforceable in accordance with
their terms.
(b) There is no litigation, action, claim, proceeding, or governmental
investigation or examination, pending or threatened, against Sellers
which may have a materially adverse effect upon the transactions
contemplated by this Agreement or upon Sellers' ability to perform
their obligations hereunder or under the agreements or instruments
contemplated by this Agreement.
(c) Sellers have, and will have as of the Closing Date, good and
marketable title to the Stock, free and clear of all liens, claims,
demands, restrictions on transferability, reservations, mortgages,
security interests, contracts of sale, options, voting agreements,
voting trusts, proxies, and all other restrictions, claims, or
encumbrances of any type or nature whatsoever.
(d) The execution and performance of this Agreement does not and will
not violate the provisions of any note, indenture, mortgage, lease, or
other agreement or instrument to which any of the Sellers is a party
or is bound, which will not be satisfied or cured prior to the Closing
Date, or does not and will not result in the creation of any lien,
charge, restriction, claim, or encumbrance whatsoever upon the Stock.
(e) No representation or warranty by Sellers in this Agreement or in
any certificate, schedule, exhibit, letter, financial document, or
other instrument furnished or to be furnished to Buyer or any of its
representatives pursuant hereto or in connection with the transactions
contemplated hereby, contains or will contain at the time of
furnishing any untrue statement of a material fact, or omits or will
omit to state at the time of furnishing a material fact necessary in
order to make the statements contained therein not misleading.
-11-
(f) Sellers have agreed to accept as their representative the Sellers'
Representative designated in paragraph 22, and agree to be bound by
the decisions of such Sellers' Representative.
11. Representations and Warranties of Buyer. Buyer represents and warrants
to Sellers as follows:
(a) This Agreement and all other agreements and instruments
contemplated by this Agreement to which Buyer is a party or signatory
have been duly authorized, executed, and delivered by Buyer and
constitute the 1egal, valid, and binding obligations of Buyer,
enforceable in accordance with their terms.
(b) There is no litigation, action, claim, proceeding, or governmental
investigation or examination, pending or threatened, against Buyer
which may have a materially adverse effect upon the transactions
contemplated by this Agreement or upon Buyer's ability to perform its
obligations hereunder or under the agreements or instruments
contemplated by this Agreement.
(c) Buyer has adequate funding and no additional capital will need to
be raised to consummate the transactions contemplated by this
Agreement.
10. Renewal and Survival of Warranties. All representations and warranties
of Sellers, Company and Buyer herein shall be true, correct, and complete on the
Closing Date, and Sellers, Company and Buyer shall have performed and complied
with all covenants, agreements, and conditions contained in this Agreement
required to be performed or complied with by them prior to Closing, and Sellers,
Company and Buyer shall not take any action at any time between the date hereof
and the Closing Date which shall cause any representation or warranty of any of
them herein to be untrue, incorrect, or incomplete at any time on or before the
Closing Date. All of the representations, warranties, covenants, and agreements
contained herein and in any documents delivered pursuant hereto shall survive
the Closing for the term of the Escrow Agreement provided for in paragraph 4.
11. Conduct of Business of Company and Bank. Except as expressly provided
in this Agreement, during the period from the date of this Agreement and through
the Closing Date, Sellers shall cause Company and Bank to conduct their
respective businesses and operations in the usual and ordinary course and in a
safe and prudent manner. To the extent consistent with such businesses, Sellers
shall cause Company and Bank to use all reasonable efforts to preserve intact
their banking and business organizations, to keep available the services of
their officers and employees, and to preserve their relationships with
customers, suppliers, and others having business dealings with them to the end
that their goodwill and continuing business of Company and Bank shall not be
materially and adversely affected at the Closing Date. During said period,
Sellers agree that Company and Bank, as the case may be, shall do or refrain
from doing (as applicable) the following, or any thereof, unless the prior
written consent of the Buyer shall have been received:
(a) Neither Company nor Bank shall incur any debt with a maturity
greater than twelve (12) months.
(b) Neither Company nor Bank shall sell, transfer, or lease any of its
properties or subject any of such properties or assets to a mortgage,
pledge, security interest, or lien, except encumbrances of the
character heretofore incurred in the ordinary and usual
-12-
course of business. The reference to "properties" and assets" in this
paragraph does not include Other Real Estate which is covered by
paragraph 11(w).
(c) Company shall not declare or pay any dividends prior to the
Closing Date. In addition, neither Company nor Bank shall issue, sell
or contract to sell any equity or debt securities, options, warrants,
rights or commitments, with respect thereto.
(d) Neither Company nor Bank shall make any expenditures of a capital
nature in excess of $5,000, other than those for which it is committed
on the date of this Agreement.
(e) Neither Company nor Bank shall enter into any long-term contracts
or long-term commitments, other than in the ordinary and normal course
of business.
(f) Neither Company nor Bank shall use any of its assets or
properties, except for proper bank holding company or banking
purposes, as the case may be.
(g) Neither Company nor Bank shall modify, amend, cancel, or terminate
any existing agreement, except in the ordinary and usual course of
business.
(h) Neither Company nor Bank shall acquire control over any other
corporation, firm, or organization, or create any new subsidiaries,
except in connection with foreclosures in the ordinary and usual
course of business, or participate in any partnership, joint venture,
or other business arrangement.
(i) Neither Company nor Bank shall increase benefits or compensation
of officers or employees of Bank or approve or implement bonuses or
promotions except normal merit, length of service and promotional
increases in the ordinary course of business and consistent with prior
practices and with the prior approval of Buyer, and at the Closing
Date there shall be no contracts of employment with Company or Bank
which are not terminable at will, no agreements to pay deferred
compensation or fringe benefits to current or former employees (or
members of their families) which have not been fully charged to prior
earnings and fully funded [other than the salary continuation
agreements referred to in paragraph 7(t)], and all accrued benefits
under all pension plans of Bank shall be fully funded.
(j) Company and Bank shall maintain all of their existing insurance
policies and bonds in full force and effect.
(k) Neither Company nor Bank shall purchase any investments other than
Federal Funds.
(l) Bank shall refrain from applying for any bank office.
(m) Company and Bank shall promptly file all tax returns for which
filing deadlines occur prior to the Closing Date and sha1l
appropriately accrue and pay, when due, all applicable federal, state,
and local taxes and assessments which have been assessed or are
payable prior to the Closing Date, including, but not limited
-13-
to, ad valorem, sales, use, excise, franchise, income, real property
and personal property taxes.
(n) Bank shall continue to pay all interest on deposits as such
interest becomes due and payable in the ordinary course of business
through the Closing Date.
(o) Bank shall continue to accrue interest receivable and reflect
collection of same in the ordinary course of business through the
Closing Date.
(p) All debts of Company and Bank with respect to the business
conducted by them shall be paid in full by them as they fall due. A
list of all payees who were paid by the Company or Bank more than
$1000 during the month shall be provided to Buyer on a monthly basis
within ten (10) days after the end of the month. The list shall
include the name of the payee, the amount of the payment and a brief
description of the purpose of the payment.
(q) Bank shall not loan funds, issue letters of credit, accept any
deposits, or enter into any commitments for such loans, letters of
credit, or deposits except in the ordinary course of business and upon
substantially the same terms, including interest rates, maturities,
collateral security, and other applicable terms as those prevailing at
the time for comparable transactions. Bank shall not capitalize any
interest on any existing loans or modify any terms of existing loans
or commitments for loans. Bank shall not make any loan or a commitment
for a loan in excess of $50,000 to any new customers of Bank without
the prior approval of Buyer. Buyer shall notify Bank within three
business days after receipt of the necessary information from the
Bank.
(r) Neither Company nor Bank shall merge or consolidate with any other
entity or enter into any agreement therefor or for the sale of assets
or acquire or agree to acquire any stock, business, properties, or
assets of any other person, firm, association, corporation, bank, or
other business organization.
(s) Neither Company nor Bank shall cancel, without payment in full,
any notes, loans, or other obligations receivable from any
stockholder, officer or director of Company or Bank, including
Sellers, or any member of their families, or from any corporation,
partnership, or other entity in which any stockholder, officer or
director of Company or Bank, including Sellers, or any member of their
families, has any direct or indirect interest.
(t) Neither Company nor Bank shall, as plaintiff, defendant, obligee,
obliger, or in any other capacity, settle any dispute which involves
the payment of money or acceptance of liabilities in excess of
$20,000.
(u) Neither Company nor Bank shall permit any material adverse change
in the quality, composition, or maturity of their assets, deposits or
other liabilities, or in their businesses; provided, however, that the
following factors shall not be considered in determining what shall
constitute a materially adverse change in the quality or composition
of assets, liabilities, or business of Bank: (i) changes in rates of
return or yield received on various Bank assets, which changes are
caused by general money market
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fluctuations; and (ii) changes in interest rates paid by Bank with
respect to its source of borrowed funds, including deposits,
repurchase agreements, and federal funds purchased, which changes are
caused by general money market fluctuations.
(v) Neither Company nor Bank shall sell any investment securities
prior to maturity thereof; however, any proposed sale of such
securities may be consented to orally by Buyer.
(w) Bank shall not sell Other Real Estate other than in compliance
with banking regulations and any proposed sale must be consented to by
Buyer.
(x) Neither Company nor Bank shall take any action or refrain from
taking any action that would have the effect of delaying scheduled
examinations by regulators.
(y) Neither Company nor Bank shall amend their Articles of
Incorporation or Bylaws, liquidate or dissolve.
(z) Neither Company nor Bank shall take any action or refrain from
taking any action that would cause or have the effect of causing any
of the representations and warranties of Bank contained herein to not
be true and correct on and as of the Closing Date.
12. Access and Information. Upon reasonable notice, Company shall (and
shall cause Bank to) afford to Buyer and its representatives such access during
normal business hours throughout the period prior to the Closing to the books,
records, properties, personnel and to such other information as Buyer may
reasonably request. Buyer will not, and will cause its representatives not to,
use any information obtained pursuant to this paragraph for any purpose
unrelated to the consummation of the transactions contemplated by this
Agreement. Within ten (10) days after the end of each month, Company shall cause
Bank to provide Buyer with reports of condition and income for the Bank.
13. Meetings of Board of Directors. To the extent permitted by appropriate
regulatory authorities, Company shall authorize and shall cause Bank to
authorize ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and/or ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ to attend (as a nonvoting
observer) all meetings of the Board of Directors and committees thereof of
Company (except meetings of the Board of Directors in executive session relating
to the transaction contemplated by this Agreement) and Bank conducted prior to
the Closing Date, and give Buyer reasonable advance notice of the date, time and
place of any such regularly scheduled meetings and special meetings of the
entire Board of Directors of either Company or Bank. All information gained by
representatives of Buyer by attendance at such meetings shall be held in strict
confidence.
14. Consents and Approvals of Third Parties. Prior to the Closing Date, all
approvals and consents or filings with all governmental authorities or agencies
or other third parties which are necessary to permit the full and complete
performance of this Agreement (including, without limitation, to permit the
valid and effective sale, assignment, transfer, conveyance, and delivery of the
Stock) shall have been obtained, and all applicable waiting periods shall have
expired, including, without limitation, regulatory approval under the Iowa
Banking Act, the Change of Bank Control Act, and/or Bank Holding Company Act,
which shall include approval with respect to a change of control, including
Buyer, and the qualification of Buyer as a bank-holding company. All such
approvals, consents, and filings shall be obtained or made,
-15-
as the case may be, at the cost of Buyer, but all parties shall cooperate in
providing all necessary information and signatures with respect to the same.
l5. Conditions Precedent to Sellers' Obligations. The obligations of
Sellers under this Agreement are subject to the fulfillment, prior to or on the
Closing Date, of each of the following conditions:
(a) Buyer shall have performed and complied with all of the terms,
agreements, covenants, and conditions required by this Agreement, to
be performed and complied with by them prior to or on the Closing
Date.
(b) No suit, action, or other proceeding shall have been instituted or
threatened before any court or other governmental body or by any
public authority to restrain or prohibit the consummation of the
transactions contemplated herein or to obtain damages or other relief
in connection with this Agreement and, on or before the Closing Date,
all consents, approvals, and filings required pursuant to paragraph 14
above shall have been obtained and/or made, and any waiting periods
imposed by any such authority shall have expired. No claim, action,
suit, or other proceeding shall be pending against Sellers (which was
commenced after the date of this Agreement) or against Company, Bank,
or Buyer which, if adversely determined, would prevent or hinder the
consummation of the transactions contemplated hereby or result in the
payment of damages as a result of such transactions.
16. Conditions Precedent to Buyer's Obligations. The obligations of Buyer
under this Agreement are subject to the fulfillment, prior to or on the Closing
Date, of each of the following conditions:
(a) Sellers shall have performed and complied with all of the terms,
agreements, covenants, and conditions required by this Agreement, to
be performed and complied with by Sellers prior to or on the Closing
Date.
(b) No suit, action, or other proceeding shall have been instituted or
threatened before any court or other governmental body or by any
public authority to restrain or prohibit the consummation of the
transactions contemplated herein or to obtain damages or other relief
in connection with this Agreement and, on or before the Closing Date,
all consents, approvals, and filings required pursuant to paragraph 14
above shall have been obtained or made, and any waiting periods
imposed by any such authority shall have expired. No claim, action,
suit, or other proceeding shall be pending against Buyer or Company,
Bank, or against any Seller which, if adversely determined, would
prevent or hinder the consummation of the transactions contemplated
hereby or result in the payment of damages and a result of such
transactions.
(c) On the Closing Date, the Shareholders' Tangible Equity of Company
shall be at least $3,100,000. "Shareholders" Tangible Equity" shall
mean the sum of stock, surplus, and undivided profits, including
year-to-date net income after income taxes and franchise taxes less
goodwill, but excluding the allowance for loan and lease losses, all
of which shall be computed on the accrual basis method using generally
accepted accounting principles applicable to commercial banks,
consistently applied, as of the close of business on the Valuation
Date; and
-16-
Shareholders' Tangible Equity shall be determined exclusive of any
unrealized gains and losses on securities pursuant to FASB 115
(determined on an after-tax basis).
(d) Between the date hereof and the Closing Date, all of the
operations and businesses of Bank shall have been carried on only in
accordance with the requirements of paragraph 11 above and in the
usual, regular, and ordinary course, consistent with good business
practices and with prior practices, and there shall not have been any
material adverse change in or to the condition, quality, composition,
or maturity of the assets, deposits, other liabilities of Bank or
Company, or in or to the business of Bank or Company or any other
operations of Bank or Company.
(e) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall have entered into a Non-competition
Agreement as set forth on Exhibit C attached hereto and incorporated
herein.
(f) The loans Buyer has identified by written letter to Seller as not
acceptable to Buyer have been sold by the Bank or otherwise removed
from the loan portfolio.
17. Termination. This Agreement and the transactions contemplated by this
Agreement may be terminated at any time on or before the Closing Date:
(a) By written notice by Buyer to Seller if one or more of the
conditions set forth in Section 16 shall not have been satisfied or if
Buyer determines such conditions cannot or will not be satisfied for
any reason; or
(b) By written notice by Seller to Buyer if one or more of the
conditions set forth in Section 15 shall not have been satisfied or if
Seller determines such conditions cannot or will not be satisfied for
any reason; or
(c) By the mutual written consent of Buyer and Seller by authority of
their respective Boards of Directors; or
(d) By written notice by Buyer or Seller to the other party if the
Closing Date is not on or prior to February 28, 2003; or
(e) By written notice pursuant to Section 7(s).
Upon the termination provided above, all rights, obligations, duties
and liabilities among the parties hereto with respect to the subject
matter of this Agreement shall be extinguished. Buyer and Seller shall
have the right to waive any of the conditions precedent for their
benefit and any breach or default on the part of the other parties
hereto. The parties may extend the deadline set forth in subsection
(d) by mutual consent which will not be unreasonably withheld.
18. Further Assurances. Sellers shall from time to time after the Closing,
at Company's request and without further consideration, execute and deliver such
other instruments of conveyance, assignment, and transfer, or such other
instruments or documents as Company or their respective counsel may request in
order to more effectively convey, assign, transfer to, and vest in Buyer good
and marketable title and possession to the Stock or in order to more fully
effectuate the intent and purposes of this Agreement.
-17-
19. Confidentiality. Each party agrees to hold the fact of this Agreement,
the terms of this Agreement, and the identity of Buyer, in strictest confidence
and not to make any announcement to the public or disclosure to anyone (except
banking regulatory authorities), with respect to the existence of this Agreement
or the pending acquisition of Company and Bank, without the prior consent of the
President of Buyer until Buyer issues a press release and/or files a Form 8-K
with the Securities and Exchange Commission.
20. Indemnification. In addition to any other indemnification rights
provided for herein or otherwise available to the parties, Sellers, jointly and
severally, shall defend, indemnify, and hold Buyer and each of its officers,
directors and controlling persons ("Indemnified Party") harmless from and
against any loss, liability, damage, or expense (including attorneys fees and
court costs) arising in connection with or resulting from any breach of
warranty, misrepresentation, or nonfulfillment of any agreement on the part of
Company, Bank or Sellers under this Agreement. The obligations of Sellers for
indemnification hereunder shall be limited to claims for indemnification made
prior to the termination of the Escrow Agreement referred to in Paragraph 4 and
shall be limited to the amount held in escrow. Sellers are liable for
indemnification only to the extent of loss in excess of $25,000 for any single
item or for loss in excess of $50,000 in aggregate.
21. Expenses. Each party hereto shall bear all expenses incurred by it in
connection with this Agreement and the transactions contemplated hereby.
22. Notices. Any notice or demand desired or required to be given hereunder
shall be in writing and deemed given when delivered by hand, certified mail,
overnight courier or facsimile transmission (confirmed in writing) to such party
at its address or facsimile number set forth below or such other address or
facsimile transmission as such party may specify by notice to the other parties
hereto:
(a) If to Sellers, to:
Sellers' Representative
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone Number:
Facsimile Number:
With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Dickinson, Mackaman, Tyler & ▇▇▇▇▇, P.C.
1600 Hub Tower
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(b) If to Buyer, to:
Mahaska Investment Company
Attention: President
▇▇▇ ▇▇▇▇▇ ▇▇▇. ▇
P. O. Box 1104
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Telephone Number: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile Number: (▇▇▇)▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇
Ahlers, Cooney, Dorweiler, Haynie, ▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
23. Entire Agreement. This Agreement, together with the letter referred to
in paragraph 16(f) and all exhibits and schedules attached hereto, constitutes
the entire agreement between the parties hereto pertaining to the subject
matters hereof, and supersedes all negotiations, preliminary agreements, and all
prior or contemporaneous discussions and understandings of the parties hereto in
connection with the subject matters hereof. All exhibits and schedules are
incorporated into this Agreement, as if set forth in their entirety, and
constitute a part hereof.
24. No Waiver; Modification in Writing. No failure or delay on the part of
any party in exercising any right, power, or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power, or remedy preclude any other or further exercise thereof or the exercise
of any other right, power, or remedy. The remedies provided for herein are
cumulative and are not exclusive of any remedies that may be available to any
party at law or in equity or otherwise. No amendment, modification, supplement,
termination, or waiver of or to any provision of this Agreement, nor consent to
any departure therefrom, shall be effective unless the same shall be in writing
and signed by or on behalf of the party to be charged with the enforcement
thereof. Any amendment, modification, or supplement of or to any provision of
this Agreement, any waiver of any provision of this Agreement, and any consent
to any departure from the terms of any provision of this Agreement shall be
effective only in the specific instance and for the specific purpose for which
made or given.
25. Severability. In the event any provision of this Agreement is held
invalid, illegal, or unenforceable, in whole or in part, the remaining
provisions of this Agreement shall not be affected thereby and shall continue to
be valid and enforceable. In the event any provision of this Agreement is held
to be unenforceable as written but enforceable if modified, then such provision
shall be deemed to be amended to such extent as shall be necessary for such
provision to be enforceable, and it shall be enforced to that extent.
26. Consent to Jurisdiction; Waiver of Jury Trial. Each of the parties
hereby irrevocably submits to the non-exclusive jurisdiction of any United
States Federal Court located in the State of Iowa or Iowa District Court, in any
action or proceeding arising out of or relating to this Agreement, and each
party hereby irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in any such United States Federal or Iowa
District Court. Each of the parties irrevocably waives any objection, including,
without limitation, any objection to the laying of venue or based on the grounds
of forum non conveniens, which it may now or hereafter have to the bringing of
any such action or proceedings in such respective jurisdictions. Each of the
parties irrevocably consents to the service of any and all process in any such
action or proceeding brought in any court in or of the state of Iowa by the
delivery of copies of such process to each party at its address specified for
Notices to be given hereunder or by certified mail direct to such address. Each
of the parties waives any right to a jury trial
-19-
with respect to any claim, counterclaim, or other matter whatsoever arising out
of this Agreement.
27. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Iowa, without regard to conflicts of
law provisions.
28. Counterparts. This Agreement may be executed in counterparts each of
which shall be deemed to constitute an original, but all of which together shall
constitute one and the same instrument.
29. Assignment. This Agreement may not be assigned by any party hereto
without the prior written consent of the other parties.
30. Headings and Captions. The titles or captions of sections and
paragraphs in this Agreement are provided for convenience of reference only and
shall not be considered a part hereof for purposes of interpreting or applying
this Agreement, and such titles or captions do not define, limit, extend,
explain, or describe the scope or extent of this Agreement or any of its terms
or conditions.
31. Construction. This Agreement shall not be construed more strongly
against any party, regardless of who was more responsible for its preparation.
32. Schedules and Certificates. All statements contained in any schedule,
certificate, or other instrument delivered by or on behalf of the parties
hereto, or in connection with the transactions contemplated hereby, are an
integral part of the Agreement and shall be deemed representations and
warranties hereunder.
33. Gender and Number. Words and phrases herein shall be construed as in the
singular or plural number and as masculine, feminine, or nearer gender,
according to the context.
34. Binding Effect on Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, successors, legal representatives, and permitted assigns.
Nothing in this Agreement, express or implied, is intended to confer upon any
other party, any rights, remedies, liabilities, or obligations under or by
reason of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
COMPANY BUYER
Belle Plaine Service Corp. Mahaska Investment Company
By: /s/ ▇▇▇▇▇▇▇ ▇. Bueneke By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its: President Its: President
SELLERS SELLERS
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇ Trust
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By: /s/ ▇▇▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇ (Trust) By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Trust)
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By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇▇
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By: /s/ ▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇ (▇▇▇ Roll Over)
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By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Trust)
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Trust)
By: /s/ ▇▇▇▇▇▇ Living Trust By: /s/ ▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ Living Trust ▇▇▇▇ ▇▇▇▇▇
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By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ (TTEE) By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (Trust)
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By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Trust) By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Trust) ▇▇▇▇▇ ▇▇▇▇▇▇▇
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By: /s/ ▇▇▇ ▇▇▇▇▇▇, (Trust) By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
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By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Exhibit A
Computation of Purchase Price
As of December 31, 2001
Total Shareholders' Equity, December 31, 2001 $3,973,972
Less Goodwill (883,157)
Less FAS 115 Adjustment (26,754)
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$3,064,061
Adjusted Shareholders' Equity December 31, 2001
Purchase Premium 3,856,924
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Total Purchase Price $6,920,985
Less Purchase Price - Preferred Stock (165,000)
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Total Purchase Price - Common Stock $6,755,985
Total Common Shares Outstanding 8,091
Purchase Price Per Common Share $835.00
335242
FINAL\330843\10\19746.000
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