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EXHIBIT 10.12
PLAN AND AGREEMENT OF MERGER AND REORGANIZATION
PLAN AND AGREEMENT OF MERGER AND REORGANIZATION (HEREINAFTER REFERRED TO
AS "AGREEMENT"), MADE AS OF THE 11 DAY OF JANUARY, 1996, BY AND BETWEEN F & M
BANK-LAKELAND, A WISCONSIN BANKING CORPORATION, AND ▇▇▇▇▇▇▇ BANK, A WISCONSIN
BANKING CORPORATION.
1. Definitions.
The following definitions shall apply in this Plan and Agreement of Merger
and Reorganization:
1.1 "Agreement" shall mean this Plan and Agreement of Merger and
Reorganization.
1.2 "BANK" shall mean ▇▇▇▇▇▇▇ Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
1.3 "Bank Stock" shall mean BANK's voting capital stock, $10.00 par value.
1.4 "Bank Stock Formula Price" shall mean the value of Bank Stock
determined in accordance with subparagraph 3.2.
1.5 "Bank Counsel" shall mean ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, S.C., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Esq.
1.6 "Bank Shareholders" shall mean the shareholders of BANK shown on the
attached Exhibit 1.6.
1.7 "Closing Date" shall be set by mutual agreement of BANK and F & M once
all conditions precedent have been met or waived.
1.8 "Effective Time" shall mean the date on which the Certificate of
Consolidation issued by the State of Wisconsin Commissioner of Banking (the
"Commissioner") is recorded with the Lincoln County Register of Deeds. The
Certificate of Consolidation shall be filed as soon as possible after the
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conditions precedent to this merger have been met or waived by F & M and BANK,
but not prior to the Closing Date.
1.9 "F & M" shall mean F & M Bank-Lakeland, ▇▇▇. ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
1.10 "F & M Counsel" shall mean McCarty, Curry, ▇▇▇▇▇▇▇, Peeters & ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attn.:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
1.11 "Proxy Statement" shall mean the document prepared by BANK to solicit
proxies from the Bank Stockholders to vote their shares in favor of the merger
contemplated by this Agreement at a special shareholders meeting to be held by
BANK.
1.12 "Valuation Date" shall mean the last day of the month prior to the
month in which closing occurs.
2. Preamble.
F & M and BANK are Wisconsin banking corporations. F & M and BANK, by
their respective employees and agents have had the opportunity to make such
review and investigation of the other as they deem appropriate and to negotiate
the terms and conditions of this Agreement. F & M and BANK each believe that
this transaction is in their best interests and in the best interests of their
shareholders and desire to set forth their agreement and understanding in this
Agreement.
The parties have considered the proposed merger and believe that a merger
between F & M and BANK will be in the best interest of their respective
corporations and shareholders. The merger of BANK into F & M is intended to
constitute a reorganization within
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the meaning of Sections 368(a)(1)(A) of the Internal Revenue Code of 1986, as
amended.
In consideration of the foregoing and the terms, conditions and covenants
of this Agreement and in reliance on the warranties and representations
contained herein, the parties adopt this Plan and Agreement of Merger and
Reorganization and agree as follows:
3. Merger of BANK into F & M.
3.1 Surviving Corporation. At the Effective Time of the merger, BANK
shall be merged into F & M in accordance with the laws of the State of
Wisconsin. F & M shall be the surviving corporation and the separate corporate
existence, identity, and organization of BANK, except as specifically provided
by law and this Agreement, shall cease. As the surviving corporation, F & M
shall succeed to and possess all the assets, properties, powers, privileges,
rights and immunities of BANK and shall be subject to all liabilities,
obligations, limitations and duties of BANK as described in this Agreement.
3.2 Exchange of Bank Stock. At the Effective Time, all Bank Shareholders
will receive cash for their shares of Bank Stock. The price per share of Bank
Stock to be paid by F & M shall be calculated as follows:
(a) Bank's Equity shall be determined as of the Valuation Date as the
sum of its capital stock, additional paid-in capital, capital surplus and
undivided profits and capital reserves (less treasury stock, if any), all
determined in accordance with generally accepted accounting principles ("GAAP")
applied on a consistent basis, but shall not include any amount
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(regardless of whether the amount increases or decreases Bank's Equity) for any
adjustment to Bank's Equity made pursuant to FASB 115.
Bank's Equity may be subject to adjustment to the extent not reflected in
the amount determined as set forth above (i) for any loans or leases which are
considered as, or have the probability of becoming, losses based upon F & M's
due diligence review of BANK; (ii) in the event BANK's reserve for loan and
lease losses is less than 1.30%, by the amount necessary to bring the reserve
to 1.30%; (iii) as a result of any change in business practices or accounting
procedures prior to the Closing Date which have the effect of inflating Bank's
Equity; (iv) as the result of a material change in the business of BANK or an
increase in its liabilities (exclusive of deposits) discovered by F & M after
the execution of this Agreement; (v) to reflect the fair market value of any
OREO held by BANK; (vi) for the amount of expenses incurred by BANK in
connection with this transaction, including, but not limited to, attorney's
fees, accounting fees, expenses of preparing the Proxy Statement and soliciting
proxies, which have not been accrued and accounted for prior to the Valuation
Date; (vii) for the amount of any adjustment to Bank's Equity made pursuant to
FASB 115; (viii) the amount of any obligation to any employee, officer,
director or shareholder which may become payable after the Closing Date at the
option of the employee, officer, director or shareholder as a result of the
transaction contemplated by this agreement; and (ix) as a result of any
unfunded or underfunded liability in any defined benefit pension
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plan maintained by BANK, assuming the complete termination of such plan, any
costs of bringing such plan into compliance with law and any costs of
terminating such plan.
(b) Bank's Equity thus determined shall be multiplied by 1.90 to
determine the aggregate consideration for all shares of Bank Stock (the
"Price"). The Price shall be divided by the total number of issued and
outstanding shares of Bank Stock (presently 24,000), extended to three decimal
places, to determine the Bank Stock price per share ("Bank Stock Formula
Price").
(c) The Bank Stock Formula Price shall be multiplied by the number of
shares of Bank Stock held by each Bank Shareholder to determine the amount paid
to each Bank Shareholder.
(d) Notwithstanding, any of the foregoing BANK Shareholders who elect
their statutory appraisal rights in compliance with Wis. Stats. Section 221.25
shall not receive the consideration described above, but shall receive the value
of the shares to which the election was filed as of the day prior to the date on
which the BANK Shareholders vote on this transaction.
3.3 Articles of Incorporation. The Articles of Incorporation of F & M in
effect immediately prior to the Effective Time of the merger shall continue in
full force and effect as the Articles of Incorporation of the surviving
corporation.
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3.4 Bylaws. The bylaws of F & M in effect immediately prior to the
Effective Time of the merger, shall continue in full force and effect as the
bylaws of the surviving corporation.
3.5 Officers and Directors. The officers and directors of F & M at the
Effective Time of the merger shall remain as the officers and directors of the
surviving corporation.
3.6 BANK Special Shareholders Meeting. BANK shall call a special
shareholders meeting in accordance with the BANK's bylaws and as required by
law at a mutually agreeable time and place for the purpose of voting on the
merger contemplated by this Agreement. BANK shall deliver the Proxy Statement
to the Bank shareholders in a timely manner prior to this special shareholders
meeting.
4. Representations and Warranties of BANK. BANK, by its duly authorized
officers, directors, or other agents and Park Falls Agency, Inc. ("PFA"), as
BANK's controlling shareholder, jointly and severally make the following
representations and warranties to F & M, each of which is true and correct to
and including the Closing Date, shall be unaffected by any investigation
heretofore or hereafter made by or any notice to F & M and shall survive the
closing and the transactions contemplated hereby:
4.1 Ownership and Authority. The current BANK Shareholders are listed on
the attached Exhibit 1.6.
4.2 BANK Organization and Authority.
(a) BANK is duly organized, validly existing and in good standing
under the laws of the State of Wisconsin and has all requisite banking and
corporate power and authority to own,
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operate and lease its properties and to carry on its business as now being
conducted. BANK operates two offices in Tomahawk, Wisconsin. BANK has a wholly
owned subsidiary, Wisconsin River Investment Corporation ("WRIC") which is duly
organized, validly existing and in good standing under the laws of the State of
Nevada and has all requisite power, authority and approvals to own, operate and
lease its properties and to carry on its business as now being conducted. BANK
and WRIC have received all necessary corporate approval and authorization and
regulatory approval and such approvals remain in full force and effect and in
good standing.
(b) BANK is authorized to issue Twenty-four Thousand (24,000) shares
of Bank Stock. BANK has Twenty-four Thousand (24,000) shares of Bank Stock
issued and outstanding, all of which are legally and validly issued, fully paid
and nonassessable. WRIC is authorized to issue Two Thousand Five Hundred
(2,500) shares of stock of which Two Thousand Five Hundred (2,500) shares are
issued and outstanding and fully paid and nonassessable.
(c) BANK has not issued and does not have outstanding any option,
warrant or convertible securities or other right to purchase or convert any
obligation into BANK's securities and has not agreed to issue or sell any
additional securities of any type.
(d) WRIC has not issued and does not have outstanding any option,
warrant or convertible securities or other right to purchase or convert any
obligation into WRIC's securities and has
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not agreed to issue or sell any additional securities of any type.
4.3 Financial Matters.
(a) True copies of BANK's financial statements, consisting of
balance sheets, statements of operations, statements of cash flow and statements
of shareholders' equity as of the close of business on December 31, 1994, 1993,
and 1992, and for the interim period ended September 30, 1995 (except for
statements of stockholders' equity) have been delivered by BANK to F & M ("Bank
Financial Statements"). All of Bank Financial Statements are true and correct
in all material respects and present an accurate and complete disclosure of the
financial condition of BANK as of their respective dates, and the earnings for
the periods covered, in accordance with generally accepted accounting
principles, applied on a consistent basis.
(b) BANK and WRIC have good marketable title to all of their assets,
business and properties including, without limitation, all such properties
reflected in the Bank Financial Statements as of December 31, 1994, free and
clear of any mortgage, lien, pledge, security interest, assessment, levy,
charge, claim or other encumbrance, for real estate and personal property taxes
for 1995 which are not yet due. Neither BANK nor WRIC have any notice of any
special assessment which will be levied or assessed against any real property
owned or leased by them. All real property owned, operated or leased by BANK or
WRIC is in full compliance with all applicable federal, state and local statutes
and regulations including, but not limited to, any
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building codes, safety codes, OSHA regulations, environmental laws and
regulations, the Americans with Disabilities Act, zoning ordinances and other
similar codes, ordinances, and regulations.
(c) All property and assets of or currently in use by BANK or WRIC or
in which they have an interest or of which they are in possession are in good
operating condition and repair subject only to normal wear and tear. A schedule
of all real and personal property owned by BANK and WRIC is attached as Exhibit
4.3(c). If BANK or WRIC leases any real or personal property, a separate
schedule clearly identifying such leased property shall be attached to this
Agreement as a part of Exhibit 4.3(c).
4.4 Changes Since December 31, 1994. Since December 31, 1994, with
respect to BANK and WRIC there has not been:
(a) Any loss, damage, destruction or failure to maintain the tangible
assets of BANK or WRIC (whether or not covered by insurance), which will
adversely affect the financial condition or operations of BANK or WRIC.
(b) Any lapse, revocation, failure to maintain in full force and
effect or other event which, through the passage of time or the giving of
notice, or both could render any insurance coverage previously maintained by
BANK or WRIC ineffective in whole or in part.
(c) Any acquisition by BANK or WRIC of a capital asset at a cost in
excess of Five Thousand Dollars ($5,000.00) except as shown on Exhibit 4.4(c).
(d) Any amendment to the Articles of Incorporation or Bylaws of BANK
or WRIC.
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(e) Any change in accounting procedures, practice or methods from
those used by BANK or WRIC in preparing the Bank Financial Statements.
(f) Except for salary and/or wage increases implemented in September,
1995, any increase in or agreement to increase salaries, wages, fringe benefits,
benefits under any plan subject to ERISA or other compensation of any officers,
directors, employees or agents of BANK or WRIC.
(g) Any issuance or agreement to issue directly or indirectly any
additional shares of stock or other securities by BANK or WRIC on or before the
Closing Date or thereafter.
(h) Any declaration, setting aside or payment of any dividend or any
distribution in respect to BANK's stock or any redemption, purchase or other
acquisition by BANK of any stock of or any other repayments to the shareholders
of BANK.
(i) Any sale, transfer, or other disposition, prior to maturity, of
any security or other earning asset (exclusive of loans and leases) of BANK or
WRIC.
(j) Any borrowings from financial institutions in addition to those
disclosed by the December 31, 1994, Bank Financial Statements.
(k) Any mortgage, lien, pledge, security interest, assessment, levy,
charge, claim or other encumbrance made with respect to any of the properties or
assets of BANK or WRIC except as disclosed by the December 31, 1994, Bank
Financial Statements.
(l) Any sale, transfer or other disposition of assets of BANK or WRIC
except in the normal course of business and
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consistent with past practices, provided, however, that neither BANK nor WRIC
may dispose of any securities prior to maturity without the prior written
consent of F & M.
(m) Any material change in the manner in which business was being
conducted by BANK or WRIC prior to December 31, 1994, or other material failure
by BANK to use its best efforts to maintain its present business organization
(subject to the terms of this Agreement), employees and customers.
(n) Any loan or commitment to make a loan by BANK with an interest
rate, repayment term, collateral or security requirements or other conditions
which are materially different from those upon which BANK made loans prior to
December 31, 1994.
(o) Any other material event, transaction or condition not in the
normal course of business.
(p) Any other materially adverse change in BANK's or WRIC's prospects,
financial condition, assets, liabilities, properties or business.
(q) Any acquisition of brokered deposits by BANK.
4.5 Liabilities.
(a) Neither BANK nor WRIC has any liabilities, whether accrued,
absolute, contingent or otherwise, which arose or relate to any transaction or
occurrence involving BANK or WRIC or their respective officers, directors,
employees, agents or servants prior to the date of this Agreement which are not
disclosed by the Bank Financial Statements described above. To the best of our
knowledge, after due and diligent inquiry, as of
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the date hereof, no known circumstances, conditions, happenings, events or
arrangements, contractual or otherwise, exist which may hereafter give rise to
any such liabilities for BANK or WRIC.
(b) To the best of our knowledge, after due and diligent inquiry, all
parties with whom BANK or WRIC have contractual arrangements are in compliance
therewith. Neither BANK nor WRIC is in default in any material respect under
any contracts to which it is a party, nor has any event occurred, which through
the passage of time or the giving of notice or both, would constitute a default
under any such contract or obligation or cause the acceleration of any
obligation of BANK or result in the creation of any lien, charge, assessment,
encumbrance or other claim whatsoever upon any asset of BANK or WRIC. None of
the contracts to which BANK or WRIC is a party will be adversely affected by the
transaction contemplated by this Agreement.
(c) To the best of our knowledge, after due and diligent inquiry, BANK
and WRIC are in compliance with all applicable federal, state, county and local
statutes, ordinances, regulations, decrees, orders, or other laws.
(d) No legal, administrative or other proceedings, investigations or
inquiries or other claims, judgments, consent decrees, stipulations, injunctions
or restrictions are either pending or outstanding, or to the best of our
knowledge after due and diligent inquiry, threatened against or involving BANK
or WRIC or affecting their assets, properties or business. After making due and
diligent inquiry, we do not know, or have any
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grounds to know, of any basis for any such proceedings, investigations or
inquiries or other claims, judgments, consent decrees, stipulations, injunctions
or restrictions.
(e) The assets and liabilities or potential liabilities of BANK and
WRIC are fully insured, except for deposits, repurchase agreements or other
similar deposit-type instruments, and except for deductibles thereunder. All
policies of insurance carried by BANK and WRIC are in full force and all
premiums thereon are paid to date and all bonds have been acquired and
maintained on all employees, agents, officers and directors of BANK and WRIC
required to be bonded. The limits of coverage of such insurance and bonds are
disclosed in the attached Exhibit 4.5(e). Said insurance and bonds including
but not limited to general comprehensive (commercial) public liability insurance
covering personal injuries, death and property damage and worker's compensation
insurance have been acquired and maintained for at least the past five (5)
years.
4.6 Taxes. BANK and WRIC have filed all federal, state and local tax
returns and reports covering income, sales, use, real or personal property or
other taxes of any type required to be filed and have paid all taxes including
any interest, penalties and assessments which are due and required to be paid.
The taxes provided for in Bank Financial Statements and which will be provided
for in any subsequent financial statements will be adequate for the payment of
any unpaid taxes as of such dates. BANK's federal income tax return has never
been audited. Neither BANK nor WRIC have waived any restrictions on the
assessment or
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collection of taxes or consented to the extension of any statute of limitations
relating to any tax liability. We have no knowledge of any possible material
deficiency or assessments in respect to state or federal income tax returns or
other tax returns filed by BANK or WRIC
4.7 Contracts and Commitments. Neither BANK nor WRIC have any contracts or
commitments, either oral or written, with any officer, director, shareholder,
employee, customer, depositor, supplier of goods or services or any other entity
or person which contain any terms or conditions which are not usual and
customary under the circumstances and which may have an adverse effect on the
operations, profitability or net worth of BANK or WRIC.
4.8 Reporting and Withholding on Payment of Interest. To the best of our
knowledge after due and diligent inquiry, BANK has fully complied with the
Internal Revenue Code (the "Code"), and all rules and regulations of the
Internal Revenue Service ("IRS") issued thereunder, with respect to the
reporting of payments of interest and other payments by it, and has complied
with all provisions requiring the withholding for income taxes on such amounts
when required. BANK has instituted adequate procedures to assure compliance
with such provisions. To the best of our knowledge after due and diligent
inquiry, all reporting to the IRS required of BANK has been done in a timely
manner via proper medium.
4.9 Employees and Employee Benefits.
(a) Neither BANK nor WRIC is a party to or bound by any written or
oral (i) employment or consulting contract which
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is not terminable at will by the BANK or WRIC as the case may be without
penalty, (ii) employee bonus, deferred compensation, pension, profit sharing,
retirement, stock purchase, stock option plan or other employee benefit or
employee welfare plan except as listed on Exhibits 4.9(b) and 4.9(c) to this
Agreement.
(b) All pension, profit sharing, or other employee pension benefit
plans of BANK ("the Plans") are described in Exhibit 4.9(b) and are now, and
will continue until the Closing Date to be, qualified Plans under Section 401(a)
of the Code, and in full compliance with the Employee Retirement Income Security
Act of 1974 as amended ("ERISA"). To our best knowledge, after due and diligent
inquiry, all premiums, notices, reports and other filings required to be
delivered or filed under applicable law with respect to such Plans have been
duly and timely delivered or filed. BANK has no knowledge of any fact or
circumstance which would adversely affect such Plans' qualified status or
compliance as above described or of any "reportable event" (as such term is
defined in Section 4043(c) of ERISA) or any "prohibited transaction" (as such
term is defined in Section 406 of ERISA and Section 4975(c) of the Code) which
has occurred since the date on which said sections first became applicable to
the Plans. The Plans satisfy the minimum funding standards set forth in the Code
and ERISA. As of the Closing Date there will be no unfunded vested liability of
the Plans.
(c) All employee welfare benefit plans of BANK (the "Welfare Plans")
are described in Exhibit 4.9(c) and are now, and will continue until the Closing
Date to be, and in full
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compliance with the Code and the Employee Retirement Income Security Act of 1974
as amended ("ERISA"). To BANK's best knowledge, all notices, reports and other
filings required to be delivered or filed under applicable law with respect to
such Welfare Plans have been duly and timely delivered or filed. BANK has no
knowledge of any fact or circumstance which would adversely affect such Welfare
Plans' compliance as above described or any "prohibited transaction" (as such
term is defined in Section 406 of ERISA and Section 4975(c) of the Code) which
has occurred since the date on which said sections first became applicable to
the Welfare Plans.
(d) No person or governmental agency has made any claim against BANK
or WRIC arising out of any statute, ordinance or regulation alleging (i)
discrimination against applicants for employment, employees or the public, (ii)
any employment practices, policies or procedures are discriminatory or have been
breached, (iii) a failure to comply with wage and hour laws, rules or
regulations, (iv) a violation of occupational safety and health statutes,
regulations or standards or (v) unfair labor practices.
4.10 Environmental Matters.
(a) There has been no release of any hazardous substance, as defined
in the Comprehensive Environmental Response, Compensation and Liability Act of
1980 ("CERCLA") nor any release of oil or hazardous substance as provided under
Wis. Stats. Section 144.76, on, upon or into the real property owned or leased
to BANK or WRIC or, to the best of our knowledge upon any
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real estate or property which secures any loan made by BANK or which BANK has a
right to acquire upon foreclosure or otherwise.
(b) To the best of our knowledge, there has been no such releases on,
upon or into any real property adjoining or in the vicinity of real property
described in paragraph 4.10(a), above which through air, soil or ground water
migration could have come to be located upon any property owned or leased by
BANK or WRIC, or which secures a loan made by BANK or may be acquired by BANK in
foreclosure.
4.11 Accuracy of All Statements. No representation or warranty in this
Agreement or any BANK Financial Statements, statement, certificate, schedule or
exhibit hereto furnished or to be furnished by or on behalf of BANK pursuant to
this Agreement, nor any document or certificate delivered to F & M pursuant to
this Agreement or in connection with actions contemplated hereby, contains or
shall contain any untrue material fact or omits or shall omit a material fact
necessary to make the information, representation or warranty contained therein
not misleading.
4.12 No Broker. All negotiations relative to this Agreement and the
transaction contemplated hereby have been carried on directly by PFA without
the intervention of any broker or third party. Neither PFA nor BANK has
engaged, consented to engage, or authorized any broker, investment banker, or
third party to act on its behalf, directly or indirectly, in any capacity in
connection with the transaction contemplated by this Agreement.
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5. Representations and Warranties of F & M.
F & M makes the following representations to BANK, each of which is true
and correct to and including the Closing Date, shall be unaffected by any
investigation heretofore, or hereafter made by or any notice to BANK except as
set forth herein.
5.1 Organization and Authority.
F & M is a Wisconsin banking corporation, duly organized, validly
existing and in good standing under the laws of the State of Wisconsin and has
all requisite banking and corporate power and authority to own, operate and
lease its properties and to carry on its business as now being conducted.
5.2 Performance of this Agreement. The execution, delivery and
performance of this Agreement and the consummation of the transaction
contemplated under it have been duly authorized by appropriate corporate
approval and will not violate any provision of F & M's articles of
incorporation or bylaws or any provisions of, or result in the acceleration of
any obligation under any mortgage, lien, lease, agreement, instrument, court
order, arbitration award, judgment or decree to which F & M is a party,
or by which F & M is bound and will not require the consent, authorization or
approval of any other public or private person or entity other than the
approval of the sole shareholder of F & M and the appropriate federal and state
banking regulatory agencies and will not violate any other restriction of any
kind or character to which F & M is subject except as set forth in this
Agreement.
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5.3 No Warranty or Representation as to Tax Consequences. PFA and the
Bank Shareholders expressly understand and agree that neither F & M nor its
corporate parent, nor their respective directors, officers, employees, agents,
attorneys, accountants or affiliated corporations (acting on behalf of F & M)
have made or are expected to make any warranty, representation, covenant or
agreement, expressed or implied, as to the tax consequences of the transactions
contemplated by this Agreement or the tax consequences to the BANK Shareholders
of any action in furtherance of, pursuant to or in any way related to this
Agreement. The BANK Shareholders assume any and all responsibility for any tax
consequences to them from this transaction and waive any and all claims in any
way related to the tax consequences of this transaction against F & M and its
directors, officers, employees, agents, attorneys or accountants (acting on
behalf of F & M). In the event F & M receives actual notice from the IRS
challenging the tax-free nature of this reorganization or any prior
reorganization before the Closing Date, F & M will inform BANK of such notice.
5.4 Directors, Officers and Employees of BANK. Neither F & M or its
directors, officers, employees, agents, attorneys or accountants have made or
will make any representations or warranties as to any further positions with
BANK or F & M following the consummation of the transaction contemplated by
this Agreement to any director, officer or employee of BANK.
5.5 Accuracy of All Statements. No representation or warranty by F & M in
this Agreement or otherwise, nor any
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financial statements, statement, certificate, schedule or exhibit hereto
furnished or to be furnished by or on behalf of F & M pursuant to this
Agreement, nor any document or certificate delivered to BANK pursuant to this
Agreement or in connection with actions contemplated hereby, contains or shall
contain any untrue material fact or omits or shall omit a material fact
necessary to make the representations or warranty statement contained therein
not misleading.
5.6 Proxy Statement. With respect to information provided by F & M, the
Proxy Statement will not contain any untrue statement of a material fact or
omit any material fact required to be stated therein or necessary to make the
statements contained therein, in the light of the circumstances under which
they were made, not misleading.
5.7 No Broker. All negotiations relative to this Agreement and the
transaction contemplated hereby have been carried on directly by F & M with BANK
without the intervention of any broker or third party. F & M has not engaged,
consented to engage, or authorized any broker, investment banker, or third party
to act on its behalf, directly or indirectly, in any capacity in connection with
the transaction contemplated by this Agreement.
6. Covenants of BANK and PFA.
BANK and PFA hereby covenant and agree as follows:
6.1 Access to Information. F & M and its authorized representatives shall
have full access during normal business hours to all properties, books, records,
contracts and documents
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of BANK and BANK shall furnish or cause to be furnished to F & M and its
authorized representative all information with respect to the affairs and
business of BANK as F & M may reasonably request. 6.2 Actions Prior to Closing.
From and after the date of this Agreement and until the Closing Date, BANK and
WRIC:
(a) Shall carry on their business diligently and substantially in the
same manner as heretofore; neither BANK nor WRIC shall engage in or institute
any unusual or novel methods of doing business.
(b) Shall not grant any increase in the rates of pay or other benefits
provided to its employees, nor grant any increase or make any decrease in the
benefits under any pension plan or other contract or commitment.
(c) Shall not enter into any contract or commitment or engage in any
transaction which is not in the normal course of business and which is not
consistent with BANK's past business practices.
(d) Shall not create any indebtedness other than (i) short term
indebtedness incurred in the normal course of business, (ii) indebtedness
incurred pursuant to an existing contract previously disclosed to F & M or (iii)
indebtedness necessary to do the acts and things contemplated by this Agreement.
(e) Shall not declare or pay any cash dividend, stock dividend or make
any other distribution in respect of the Bank Stock, or directly or indirectly
redeem, purchase or otherwise acquire any Bank Stock, or grant any stock warrant
or stock
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option or issue directly or indirectly any shares of common or preferred stock
or any other security of any type whatsoever or in any way dispose of any shares
of Bank Stock, stock or any other security.
(f) Shall not amend their Articles of Incorporation or Bylaws or make
any changes in authorized or issued stock.
(g) Shall maintain current insurance in effect and acquire such
additional insurance as may be reasonably required by increased business and
risks, and operate, maintain and repair all real and personal property in a
normal and prudent business manner.
(h) Shall use their best efforts (without making any commitments on
behalf of F & M) to keep their business organization intact, to keep available
to F & M the present key officers and employees of BANK and to preserve for F &
M the present relationships of BANK with its suppliers, customers and others
having business relations with them.
(i) Shall not sell or dispose of any property or assets except in the
normal course of business, including but not limited to, selling or disposing of
any securities held by BANK or WRIC prior to their normal maturity dates.
(j) Shall promptly notify F & M of any lawsuits, claims, proceedings,
regulatory actions or investigations or other investigation that may be
threatened, brought, asserted or commenced against either of them or their
officers, directors, employees or agents, or involving in any way the business,
properties or assets of BANK or WRIC.
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(k) Shall not make loans or grant credit to any customer on terms
materially more favorable than those which are available from competitive
sources.
(l) Shall not allow BANK's primary capital to asset ratio (12 C.F.R.
Part 325 method), determined in accordance with generally accepted accounting
principles applied on a consistent basis to drop below eight percent (8%).
(m) Shall remain in compliance with all agreements, commitments,
understandings, undertakings or other obligations to the Commissioner, the FDIC
or any other regulatory agency having jurisdiction over BANK or WRIC.
(n) Shall prepare the Proxy Statement so as to provide full and
adequate disclosure of all material facts and information regarding this
transaction and shall not omit any material facts or information from the Proxy
Statement necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading. Said Proxy Statement
will be delivered to the Bank Shareholders prior to BANK's special shareholders'
meeting held to vote on this transaction in a timely manner as required by law
and by the BANK's bylaws.
(o) Shall not take any action to cause a temporary or other increase
not in the normal course of business in the Bank Stock Formula Price as of the
Valuation Date.
7. Covenants of F & M. F & M hereby covenants and agrees to provide such
information as BANK may reasonably request for use in preparation of the Proxy
Statement.
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8. Conditions Precedent to F & M's Obligations. Each and every obligation of F
& M to be performed on the Closing Date shall be subject to the satisfaction
prior thereto of the following conditions:
8.1 Truth of Representations and Warranties. The representations and
warranties given in this Agreement or given on behalf of BANK or WRIC
hereunder, shall be true and correct on and as of the Closing Date with the
same effect as though such representations and warranties had been made or
given on and as of the Closing Date and BANK and WRIC shall have complied with
all other terms, conditions and covenants of this Agreement.
8.2 Compliance with Covenants. BANK shall have performed and complied
with all its obligations under this Agreement which are to be performed or
complied with by it prior to or as of the Closing Date, including the delivery
of the closing documents specified in paragraph 10.3.
8.3 Absence of Suit. No action, suit or proceeding before any court or any
governmental or regulatory authority shall have been commenced or threatened
and, no investigation by any governmental or regulatory authority shall have
been commenced, against F & M or BANK, or any of the affiliates, associates,
officers, directors or employees of any of them, seeking to restrain, prevent or
change the transactions contemplated hereby, or questioning the validity or
legality of any such transactions, or seeking damages in connection with any of
such transactions.
8.4 BANK's Director and Shareholder Authorization. The merger contemplated
by this Agreement shall have been duly and
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validly authorized by BANK's directors and shareholders in accordance with the
laws of the State of Wisconsin, including but not limited to the provisions of
Wis. Stats. Section 221.25. The BANK and PFA agree to proceed in good faith to
obtain these approvals.
8.5 Receipt of Approvals. All approvals, consents and/or waivers,
including any approvals required by any federal or state governmental
regulatory agency, that are necessary to effect the transactions contemplated
hereby shall have been received.
8.6 Accuracy of Financial Statements. F & M and its representatives shall
be reasonably satisfied as to the accuracy of all interim balance sheets,
statements of income and other financial statements of BANK furnished to F & M
for periods ended after December 31, 1994. In the event this transaction is
not closed prior to December 31, 1995, BANK shall deliver 1995 (unaudited)
financial statements to F & M as soon as practicable for the period ended
December 31, 1995 at BANK's expense.
8.7 Time Limit on Closing. Closing shall have taken place by April 15,
1996.
8.8 Legal Opinion. F & M shall have received the opinion of Bank's
Counsel referred to in subparagraph 10.3(b).
8.9 Proceedings and Instruments Satisfactory; Certificates. All
proceedings, corporate or otherwise, to be taken in connection with the
transactions contemplated by this Agreement shall have occurred and all
appropriate documents incident thereto as F & M may reasonably request shall
have been delivered to F & M. BANK shall have delivered certificates in such
detail
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as F & M may reasonably request as to comply with the conditions set forth in
this Article 8.
8.10 Appraisal Rights. The Bank Shareholders who elect their statutory
appraisal rights pursuant to Wis. Stats. Section 221.25 shall hold less than
five percent (5%) of the issued and outstanding shares of Bank Stock.
8.11 Proxy Statement. The Proxy Statement will not contain any untrue
statement of a material fact or omit any material fact required to be stated
therein or necessary to make the statements contained therein, in the light of
the circumstances under which they were made, not misleading.
8.12 No Change Prior to Closing Date. No material adverse change in the
business or financial condition of BANK shall occur after the Valuation Date
but prior to the Closing Date.
9. Conditions Precedent to BANK's Obligations.
Each and every obligation of BANK to be performed on the Closing Date
shall be subject to the satisfaction prior thereto of the following conditions:
9.1 Truth of Representations and Warranties. The representations and
warranties made by F & M in this Agreement or given on its behalf hereunder,
shall be true and correct on and as of the Closing Date with the same effect as
though such representations and warranties had been made or given on and as of
the Closing Date.
9.2 F & M's Compliance. F & M shall have performed and complied with all
of its obligations under this Agreement which
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are to be performed or complied with by them prior to or as of the Closing Date,
including delivery of the closing documents.
9.3 Absence of Suit. No action, suit or proceeding before any court or
any governmental or regulatory authority shall have been commenced or be
threatened and, no investigation by any governmental or regulatory authority
shall have been commenced, against F & M or BANK, or any of the affiliates,
associates, officers, directors, or employees of any of them, seeking to
restrain, prevent, or change the transactions contemplated hereby, or
questioning the validity or legality of any such transactions, or seeking
damages in connection with any of such transactions.
9.4 Proceedings and Instruments Satisfactory; Certificates. All
proceedings, corporate or otherwise, to be taken by F & M in connection with the
transaction contemplated by this Agreement shall have occurred and all
appropriate documents incident thereto as BANK may reasonably request shall have
been delivered to BANK. F & M shall have delivered certificates in such detail
as BANK may reasonably request as to compliance with the conditions set forth in
this Article 9.
9.5 F & M's Director and Shareholder Authorization. The transaction
contemplated by this Agreement shall have been duly and validly authorized by F
& M's directors and shareholders in accordance with the laws of the State of
Wisconsin. F & M covenants to proceed in good faith to obtain such approvals.
9.6 Receipt of Approvals. All approvals, consents and or waivers,
including any approvals required by any federal or state
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governmental regulatory agency, that are necessary to effect the transactions
contemplated hereby shall have been received, provided the failure to obtain the
same was not the result of an act or omission by BANK.
9.7 Time Limit on Closing. Closing shall have taken place by April 15,
1996.
9.8 Legal Opinion. BANK shall have received the opinion of F & M Counsel
referred to in subparagraph 10.4(c).
9.9 Proxy Statement. The Proxy Statement will not contain any untrue
statement of material fact or omit any material fact required to be stated
therein or necessary to make the statements contained therein, in the light of
the circumstances under which they were made, not misleading.
10. Closing.
10.1 Time and Place. The closing of this transaction ("closing") shall
take place at the offices of F & M (or such other place as the parties may
agree) on the Closing Date.
10.2 Rights of Bank Shareholders After the Effective Time. After the
Effective Time and until the surrender of a stock certificate representing
shares of Bank Stock, each such outstanding certificate, which prior to the
Effective Time represented shares of Bank Stock, shall be deemed for all
purposes, subject to the further provisions of this Agreement, to evidence the
ownership of the cash into which such shares have been converted; provided,
however, that unless and until any such certificates representing Bank Stock
shall be so surrendered, the cash shall be withheld by F & M. Delivery of cash
to former Bank
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Shareholders who have tendered their certificates for their shares of Bank Stock
at or before the Effective Time shall be made as soon as reasonably possible
after the Effective Time.
10.3 Documents to be Delivered by BANK. At the time of or prior to the
closing, BANK shall deliver the following documents:
(a) A certificate by the officers of BANK that the representations and
warranties made by BANK in this Agreement are true and correct on as of the
Closing Date with the same effect as though such representations and warranties
had been made on or given on and as of the Closing Date and that BANK has
performed and complied with all of its obligations under this Agreement which
are to be performed or complied with by or prior to or on the Closing Date.
(b) A written opinion from counsel for BANK dated as of the Closing
Date addressed to F & M, and McCarty, Curry, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇, reasonably
satisfactory in form and substance to counsel for F & M to the effect that:
(i) The matters set forth in subparagraphs 4.2, 4.3, 4.4(c),
4.5(d), 4.5(g) and 4.5(h) are as represented.
(ii) To the best of such counsel's knowledge, based upon such
counsel's independent investigation,the matters set forth in subparagraphs 4.6,
4.8, 4.9, 4.10(b) 4.10(c) and 4.12 are as represented.
(iii) That at a special shareholders meeting of BANK, duly called
and held, the Bank Shareholders approved this transaction and the merger of BANK
into F & M as required by law and by the BANK's Articles of Incorporation and
Bylaws.
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(iv) That a duly authorized officer, proxy or attorney-in-fact
of PFA has voted the shares of Bank Stock owned by PFA in favor of the merger
contemplated by this Agreement.
(v) Based upon the knowledge of such counsel, as a part of its
independent investigation, such counsel does not have any knowledge of any
inaccurate, false or misleading statement in, or of the omission of any material
fact or information from, the Proxy Statement.
(c) An Incumbency Certificate for the officers executing the documents
on behalf of BANK and PFA in connection with the transaction contemplated
hereby.
(d) Copies of the Articles of Incorporation and Bylaws of BANK and
WRIC, duly certified by their custodians as true, correct and complete copies
thereof, including any amendments as of the Closing Date.
(e) Certified resolutions of BANK's Board of Directors and
Shareholders approving the merger contemplated by this Agreement and certified
resolutions of PFA designating the officer, proxy or attorney-in-fact authorized
to vote the shares of Bank Stock owned by PFA in favor of the merger
contemplated by this Agreement.
(f) Such other documents of transfer, certificates or authority and
other documents as F & M may reasonably request.
10.4 Documents to be Delivered by F & M. F & M shall deliver the
following documents:
(a) Checks for the required cash payments as determined under Article
3 of this Agreement. Such checks will
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be in the name of Bank Shareholders entitled to the same in accordance with
their interest in BANK as of the Effective Time provided, however, that such
cash need not be delivered until such time as the provision of paragraph 10.2
have been complied with by such Shareholders.
(b) An Incumbency Certificate relating to all parties executing
documents relating to any of the transactions contemplated hereby on behalf of F
& M.
(c) A certificate by an executive officer of F & M that, to the best
of such officer's knowledge, (i) the representations and warranties made by F &
M in this Agreement are true and correct as of the Closing Date and (ii) that F
& M has performed and complied with all of its obligations which are to be
performed or complied with by or prior to or as of the Closing Date.
(d) A written opinion from counsel for F & M dated as of the Closing
Date addressed to BANK and Bank Counsel, reasonably satisfactory in form and
substance to BANK counsel to the effect that:
(i) The matters stated in paragraphs 5.1, and 5.2 are as
represented.
(ii) To the best of such counsel's knowledge but without making
any independent investigation or verification, the matters stated in paragraph
5.6 are as represented.
11. Law Governing.
This Agreement shall be construed and interpreted according to the laws of
the State of Wisconsin.
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12. Assignment.
This Agreement may not be assigned in whole or in part without the written
consent of the other parties.
13. Amendment and Modification.
This Agreement may only be amended or modified by a written agreement
signed by the duly authorized representatives of F & M and BANK.
14. Abandonment.
This Agreement may be terminated and the transaction provided for by this
Agreement may be abandoned at any time before the Closing Date:
(a) By mutual consent of F & M and BANK;
(b) By F & M if any of the conditions provided for in Article 8 of
this Agreement have not been met and have not been waived in writing by F & M or
if Exhibits as described in the Agreement to be provided by BANK have not been
delivered to F & M, in the form and substance reasonably satisfactory to F & M
and consistent with representations made by BANK, within at least ten (10)
working days before the Closing Date; or
(c) By BANK if any of the conditions provided for in Article 9 of this
Agreement have not been met and have not been waived in writing by BANK.
In the event of termination and abandonment by any party as provided in
this Article, written notice shall forthwith be given to the other party
setting forth the condition which has not been met or the default in
performance. The party to whom the notice is directed shall, if such party is
able to effect a satisfaction
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or cure, have ten (10) days after such notice is given to satisfy such condition
or cure such default, provided that if such ten (10) day period is not
sufficient and the party is making a diligent effort to satisfy such condition
or cure such default, the time to do so may be extended for such period as the
parties may agree not to exceed thirty (30) days provided however, that the
Valuation Date shall be established as if the default had not occurred. The
termination and/or abandonment of this Agreement shall not alter or diminish the
liability of the party that failed to comply with the conditions of this
Agreement. Each party shall pay its own expenses incident to preparation for
the consummation of this Agreement and the transactions contemplated hereunder.
15. Notices.
All notices, requests, demands, and other communications hereunder shall be
deemed to have been duly given, if delivered by hand, upon actual delivery or if
by mail, by certified mail - return receipt requested with postage prepaid or by
private courier, upon receipt by the addressee, or if by telecopy (with a copy
sent by first class mail) upon receipt of the transmission by the addressee:
(a) If to BANK, to ▇▇▇ ▇▇▇▇, Secretary, Park Falls Agency, Inc. ▇/▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, FAX: ▇▇▇-▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Esq., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, S.C., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, FAX: ▇▇▇-▇▇▇-▇▇▇▇.
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(b) If to F & M, to ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, FAX: ▇▇▇-▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.,
McCarty, Curry, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
FAX: ▇▇▇-▇▇▇-▇▇▇▇.
The place to which notice is to be given may be changed by notice given in
accordance with this Article.
16. Entire Agreement.
This Agreement with Exhibits embodies the entire Agreement between the
parties hereto with respect to the transaction contemplated herein and
supersedes all prior agreements, written or oral, express or implied and all
negotiations, discussions or other matters between the parties and there have
been and are no agreements representations or warranties between the parties
other than those set forth or provided for herein.
17. Counterparts.
This Agreement may be executed in two (2) or more partially or fully
executed counterparts, each of which shall be deemed an original and shall bind
the signatory, but all of which together shall constitute but one and the same
instrument.
18. Binding Effect.
This Agreement shall inure to the benefit of and bind the parties and their
respective heirs, beneficiaries, transferees, successors, and assigns.
19. Headings.
The headings of this Agreement are inserted for convenience only and shall
not constitute a part hereof.
20. Further Documents.
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F & M, BANK and PFA agree to execute any and all other documents and to
take such other action or corporate proceedings as may be reasonably necessary
or desirable to carry out the terms hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
F & M BANK-LAKELAND ("F & M")
By:__/s/____________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chairman of the Board
ATTEST:
By:__/s/____________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
▇▇▇▇▇▇▇ BANK ("BANK")
By:__/s/_____________________________
▇▇▇ ▇▇▇▇
Chairman of the Board
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ATTEST:
By:__/s/____________________________
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
President
PARK FALLS AGENCY, INC. ("PFA")
By:__/s/_____________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
President
ATTEST:
By:__/s/____________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Secretary
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