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EXHIBIT 1
AGREEMENT AND PLAN OF REORGANIZATION
BY AND BETWEEN
AMBANC CORP.
AND
UNION PLANTERS CORPORATION
DATED AS OF MARCH 31, 1998
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TABLE OF CONTENTS
Page
ARTICLE 1 -- TRANSACTIONS AND TERMS OF MERGER.......................................................... 1
1.1 MERGER................................................................................... 1
1.2 TIME AND PLACE OF CLOSING................................................................ 2
1.3 EFFECTIVE TIME........................................................................... 2
1.4 EXECUTION OF STOCK OPTION AGREEMENT...................................................... 2
ARTICLE 2 -- TERMS OF MERGER........................................................................... 2
2.1 CHARTER.................................................................................. 2
2.2 BYLAWS................................................................................... 2
2.3 DIRECTORS AND OFFICERS................................................................... 2
ARTICLE 3 -- MANNER OF CONVERTING SHARES............................................................... 3
3.1 CONVERSION OF SHARES..................................................................... 3
3.2 ANTI-DILUTION PROVISIONS................................................................. 3
3.3 SHARES HELD BY AMBANC OR UPC............................................................. 3
3.4 FRACTIONAL SHARES........................................................................ 3
3.5 CONVERSION OF STOCK RIGHTS............................................................... 4
ARTICLE 4 -- EXCHANGE OF SHARES........................................................................ 5
4.1 EXCHANGE PROCEDURES...................................................................... 5
4.2 RIGHTS OF FORMER AMBANC STOCKHOLDERS..................................................... 5
ARTICLE 5 -- RESENTATIONS AND WARRANTIES OF AMBANC..................................................... 6
5.1 ORGANIZATION, STANDING, AND POWER........................................................ 6
5.2 AUTHORITY; NO BREACH BY AGREEMENT........................................................ 6
5.3 CAPITAL STOCK............................................................................ 7
5.4 AMBANC SUBSIDIARIES...................................................................... 8
5.5 SEC FILINGS; FINANCIAL STATEMENTS........................................................ 8
5.6 ABSENCE OF UNDISCLOSED LIABILITIES....................................................... 9
5.7 ABSENCE OF CERTAIN CHANGES OR EVENTS..................................................... 9
5.8 TAX MATTERS.............................................................................. 9
5.9 ASSETS................................................................................... 10
5.10 ENVIRONMENTAL MATTERS................................................................... 11
5.11 COMPLIANCE WITH LAWS.................................................................... 11
5.12 LABOR RELATIONS......................................................................... 12
5.13 EMPLOYEE BENEFIT PLANS.................................................................. 12
5.14 MATERIAL CONTRACTS...................................................................... 15
5.15 LEGAL PROCEEDINGS....................................................................... 15
5.16 REPORTS................................................................................. 15
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5.17 STATEMENTS TRUE AND CORRECT............................................................. 16
5.18 ACCOUNTING, TAX, AND REGULATORY MATTERS................................................. 16
5.19 STATE TAKEOVER LAWS..................................................................... 16
5.20 CHARTER PROVISIONS...................................................................... 16
5.21 RIGHTS AGREEMENT........................................................................ 17
5.22 DERIVATIVES............................................................................. 17
5.23 YEAR 2000............................................................................... 17
ARTICLE 6 -- REPRESENTATIONS AND WARRANTIES OF UPC..................................................... 17
6.1 ORGANIZATION, STANDING, AND POWER........................................................ 17
6.2 AUTHORITY; NO BREACH BY AGREEMENT........................................................ 17
6.3 CAPITAL STOCK............................................................................ 18
6.4 UPC SUBSIDIARIES......................................................................... 18
6.5 SEC FILINGS; FINANCIAL STATEMENTS........................................................ 19
6.6 ABSENCE OF UNDISCLOSED LIABILITIES....................................................... 20
6.7 ABSENCE OF CERTAIN CHANGES OR EVENTS..................................................... 20
6.8 TAX MATTERS.............................................................................. 20
6.9 ASSETS................................................................................... 21
6.10 ENVIRONMENTAL MATTERS................................................................... 21
6.11 COMPLIANCE WITH LAWS.................................................................... 22
6.12 LABOR RELATIONS......................................................................... 23
6.13 LEGAL PROCEEDINGS....................................................................... 23
6.14 REPORTS................................................................................. 23
6.15 STATEMENTS TRUE AND CORRECT............................................................. 23
6.16 ACCOUNTING, TAX, AND REGULATORY MATTERS................................................. 24
6.17 EMPLOYEE BENEFIT PLANS.................................................................. 24
6.18 DERIVATIVES............................................................................. 24
6.19 YEAR 2000............................................................................... 24
ARTICLE 7 -- CONDUCT OF BUSINESS PENDING CONSUMMATION.................................................. 25
7.1 AFFIRMATIVE COVENANTS OF BOTH PARTIES.................................................... 25
7.2 NEGATIVE COVENANTS OF AMBANC............................................................. 25
7.3 ADVERSE CHANGES IN CONDITION............................................................. 27
7.4 REPORTS.................................................................................. 27
ARTICLE 8 -- ADDITIONAL AGREEMENTS..................................................................... 28
8.1 REGISTRATION STATEMENT; PROXY STATEMENT; STOCKHOLDER
APPROVALS..................................................................................... 28
8.2 EXCHANGE LISTING......................................................................... 28
8.3 APPLICATIONS............................................................................. 28
8.4 FILINGS WITH STATE OFFICES............................................................... 28
8.5 AGREEMENT AS TO EFFORTS TO CONSUMMATE.................................................... 28
8.6 INVESTIGATION AND CONFIDENTIALITY........................................................ 29
8.7 PRESS RELEASES........................................................................... 29
8.8 CERTAIN ACTIONS.......................................................................... 30
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8.9 ACCOUNTING AND TAX TREATMENT............................................................. 30
8.10 STATE TAKEOVER LAWS..................................................................... 30
8.11 CHARTER PROVISIONS...................................................................... 30
8.12 AGREEMENT OF AFFILIATES................................................................. 30
8.13 EMPLOYEE BENEFITS AND CONTRACTS......................................................... 31
8.14 INDEMNIFICATION......................................................................... 32
8.15 CERTAIN MODIFICATIONS................................................................... 33
ARTICLE 9 -- CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE......................................... 33
9.1 CONDITIONS TO OBLIGATIONS OF EACH PARTY.................................................. 33
9.2 CONDITIONS TO OBLIGATIONS OF UPC......................................................... 35
9.3 CONDITIONS TO OBLIGATIONS OF AMBANC...................................................... 36
ARTICLE 10 -- TERMINATION.............................................................................. 37
10.1 TERMINATION............................................................................. 37
10.2 EFFECT OF TERMINATION................................................................... 40
10.3 NON-SURVIVAL OF REPRESENTATIONS AND COVENANTS........................................... 40
ARTICLE 11 -- MISCELLANEOUS............................................................................ 40
11.1 DEFINITIONS............................................................................. 40
11.2 EXPENSES................................................................................ 48
11.3 BROKERS AND FINDERS..................................................................... 48
11.4 ENTIRE AGREEMENT........................................................................ 48
11.5 AMENDMENTS.............................................................................. 48
11.6 WAIVERS................................................................................. 49
11.7 ASSIGNMENT.............................................................................. 49
11.8 NOTICES................................................................................. 49
11.9 GOVERNING LAW........................................................................... 50
11.10 COUNTERPARTS........................................................................... 50
11.11 CAPTIONS............................................................................... 50
11.12 INTERPRETATIONS........................................................................ 51
11.13 ENFORCEMENT OF AGREEMENT............................................................... 51
11.14 SEVERABILITY........................................................................... 51
LIST OF EXHIBITS
Exhibit 1 Stock Option Agreement
Exhibit 2 Plan of Merger
Exhibit 3 Affiliate Agreement
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AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement")
is made and entered into as of March 31, 1998, by and between AMBANC CORP.
("Ambanc"), a corporation organized and existing under the Laws of the State of
Indiana, with its principal office located in Vincennes, Indiana; and UNION
PLANTERS CORPORATION ("UPC"), a corporation organized and existing under the
Laws of the State of Tennessee, with its principal office located in Memphis,
Tennessee.
PREAMBLE
The Boards of Directors of Ambanc and UPC are of the opinion
that the transactions described herein are in the best interests of the parties
to this Agreement and their respective stockholders. This Agreement provides for
the acquisition of Ambanc by UPC pursuant to the merger (the "Merger") of Ambanc
with and into Union Planters Holding Corporation ("UPHC"), a wholly-owned
subsidiary of UPC organized under the Laws of the State of Tennessee. At the
effective time of the Merger, the outstanding shares of the common stock of
Ambanc shall be converted into shares of the common stock of UPC (except as
provided herein). As a result, stockholders of Ambanc shall become stockholders
of UPC, and UPHC shall continue to conduct the business and operations of Ambanc
as a wholly-owned subsidiary of UPC. The transactions described in this
Agreement are subject to the approvals of the stockholders of Ambanc, the Board
of Governors of the Federal Reserve System, and certain state regulatory
authorities, and the satisfaction of certain other conditions described in this
Agreement. It is the intention of the parties to this Agreement that the Merger
(i) for federal income tax purposes shall qualify as a "reorganization" within
the meaning of Section 368(a) of the Internal Revenue Code and (ii) for
accounting purposes shall qualify for treatment as a pooling of interests.
Immediately after the execution and delivery of this
Agreement, as a condition and inducement to UPC's willingness to enter into this
Agreement, Ambanc and UPC are entering into a stock option agreement (the "Stock
Option Agreement"), in substantially the form of Exhibit 1, pursuant to which
Ambanc is granting to UPC an option to purchase shares of Ambanc Common Stock.
Certain terms used in this Agreement are defined in Section
11.1 of this Agreement.
NOW, THEREFORE, in consideration of the above and the mutual
warranties, representations, covenants, and agreements set forth herein, the
Parties agree as follows:
ARTICLE 1
TRANSACTIONS AND TERMS OF MERGER
1.1 MERGER. Subject to the terms and conditions of this Agreement, at
the Effective Time, Ambanc shall be merged with and into UPHC in accordance with
the provisions of IC 23-1-
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40-7 of the IBCL and with the effect provided in IC 23-1-40-6 of the IBCL and in
accordance with the provisions of Section 00-00-000 of the TBCA and with the
effect provided in Section 00-00-000 of the TBCA (the "Merger"). UPHC shall be
the Surviving Corporation resulting from the Merger and shall continue to be
governed by the Laws of the State of Tennessee. The Merger shall be consummated
pursuant to the terms of this Agreement, which has been approved and adopted by
the Board of Directors of Ambanc and has been or will be adopted by the Board of
Directors of UPC, and the Plan of Merger, in substantially the form of Exhibit
2, which has been approved and adopted by the Board of Directors of Ambanc and
will be approved and adopted by the Board of Directors of UPHC prior to the
Effective Time.
1.2 TIME AND PLACE OF CLOSING. The consummation of the Merger (the
"Closing") shall take place at 9:00 A.M. on the date that the Effective Time
occurs (or the immediately preceding day if the Effective Time is earlier than
9:00 A.M.), or at such other time as the Parties, acting through their duly
authorized officers, may mutually agree. The place of Closing shall be at such
location as may be mutually agreed upon by the Parties.
1.3 EFFECTIVE TIME. The Merger and the other transactions contemplated
by this Agreement shall become effective on the date and at the time the
Articles of Merger shall become effective with the Secretary of State of the
State of Indiana and the Secretary of State of the State of Tennessee (the
"Effective Time"). Subject to the terms and conditions hereof, unless otherwise
mutually agreed upon in writing by the duly authorized officers of each Party,
the Parties shall use their reasonable efforts to cause the Effective Time to
occur on or before the 15th business day (as designated by UPC) following the
last to occur of (i) the effective date (including expiration of any applicable
waiting period) of the last required Consent of any Regulatory Authority having
authority over and approving or exempting the Merger and (ii) the date on which
the stockholders of Ambanc approve the matters relating to this Agreement
required to be approved by such stockholders by applicable Law.
1.4 EXECUTION OF STOCK OPTION AGREEMENT. Immediately after the
execution of this Agreement and as a condition hereto, Ambanc is executing and
delivering to UPC the Stock Option Agreement.
ARTICLE 2
TERMS OF MERGER
2.1 CHARTER. The Charter of UPHC in effect immediately prior to the
Effective Time shall be the Charter of the Surviving Corporation after the
Effective Time until otherwise amended or repealed.
2.2 BYLAWS. The Bylaws of UPHC in effect immediately prior to the
Effective Time shall be the Bylaws of the Surviving Corporation after the
Effective Time until otherwise amended or repealed.
2.3 DIRECTORS AND OFFICERS. The directors of UPHC in office immediately
prior to the Effective Time, together with such additional individuals
thereafter elected, shall serve as the directors of the Surviving Corporation
from and after the Effective Time in accordance with the
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Bylaws of the Surviving Corporation. The officers of UPHC in office immediately
prior to the Effective Time, together with such additional individuals
thereafter elected, shall serve as the officers of the Surviving Corporation
from and after the Effective Time in accordance with the Bylaws of the Surviving
Corporation.
ARTICLE 3
MANNER OF CONVERTING SHARES
3.1 CONVERSION OF SHARES. Subject to the provisions of this Article 3,
at the Effective Time, by virtue of the Merger and without any action on the
part of UPC or Ambanc, or the stockholders of either of the foregoing, the
shares of the constituent corporations shall be converted as follows:
(a) Each share of UPC Common Stock issued and outstanding
immediately prior to the Effective Time shall remain issued and outstanding from
and after the Effective Time.
(b) Each share of UPHC Common Stock issued and outstanding
immediately prior to the Effective Time shall remain issued and outstanding from
and after the Effective Time.
(c) Each share of Ambanc Common Stock excluding shares held by
any Ambanc Company or any UPC Company (in each case other than in a fiduciary
capacity or as a result of debts previously contracted) issued and outstanding
at the Effective Time shall be converted into 0.4841 of a share of UPC Common
Stock (subject to possible adjustment as set forth in Section 10.1(g) of this
Agreement, the "Exchange Ratio"). Pursuant to the UPC Rights Agreement, each
share of UPC Common Stock issued in connection with the Merger upon conversion
of Ambanc Common Stock shall be accompanied by a UPC Right.
3.2 ANTI-DILUTION PROVISIONS. In the event Ambanc changes the number of
shares of Ambanc Common Stock issued and outstanding prior to the Effective Time
as a result of a stock split, stock dividend, recapitalization, or similar
transaction with respect to such stock, the Exchange Ratio shall be
proportionately adjusted. In the event UPC changes the number of shares of UPC
Common Stock issued and outstanding prior to the Effective Time as a result of a
stock split, stock dividend, recapitalization, or similar transaction with
respect to such stock and the record date therefor (in the case of a stock
dividend) or the effective date thereof (in the case of a stock split or similar
recapitalization for which a record date is not established) shall be prior to
the Effective Time, the Exchange Ratio shall be proportionately adjusted.
3.3 SHARES HELD BY AMBANC OR UPC. Each of the shares of Ambanc Common
Stock issued but not outstanding or held by any Ambanc Company or by any UPC
Company, in each case other than in a fiduciary capacity or as a result of debts
previously contracted, shall be canceled and retired at the Effective Time and
no consideration shall be issued in exchange therefor.
3.4 FRACTIONAL SHARES. Notwithstanding any other provision of this
Agreement, each holder of shares of Ambanc Common Stock exchanged pursuant to
the Merger who would otherwise have been entitled to receive a fraction of a
share of UPC Common Stock (after taking
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into account all certificates delivered by such holder) shall receive, in lieu
thereof, cash (without interest) in an amount equal to such fractional part of a
share of UPC Common Stock multiplied by the market value of one share of UPC
Common Stock at the Effective Time. The market value of one share of UPC Common
Stock at the Effective Time shall be the last sale price of UPC Common Stock on
the NYSE-Composite Transactions List (as reported by The Wall Street Journal or,
if not reported thereby, any other authoritative source selected by UPC) on the
last trading day preceding the Effective Time. No such holder will be entitled
to dividends, voting rights, or any other rights as a stockholder in respect of
any fractional shares.
3.5 CONVERSION OF STOCK RIGHTS.
(a) At the Effective Time, each award, option, or other right
to purchase or acquire shares of Ambanc Common Stock pursuant to stock options,
stock appreciation rights, or stock awards ("Ambanc Rights") granted by Ambanc
under the Ambanc Stock Plans, which are outstanding at the Effective Time,
whether or not exercisable, shall be converted into and become rights with
respect to UPC Common Stock, and UPC shall assume each Ambanc Right, in
accordance with the terms of the Ambanc Stock Plan and stock option agreement by
which it is evidenced, except that from and after the Effective Time, (i) UPC
and its Salary and Benefits Committee shall be substituted for Ambanc and the
Committee of Ambanc's Board of Directors (including, if applicable, the entire
Board of Directors of Ambanc) administering such Ambanc Stock Plan, (ii) each
Ambanc Right assumed by UPC may be exercised solely for shares of UPC Common
Stock (or cash in the case of stock appreciation rights), (iii) the number of
shares of UPC Common Stock subject to such Ambanc Right shall be equal to the
number of shares of Ambanc Common Stock subject to such Ambanc Right immediately
prior to the Effective Time multiplied by the Exchange Ratio and rounding down
to the nearest whole share, and (iv) the per share exercise price (or similar
threshold price, in the case of stock awards) under each such Ambanc Right shall
be adjusted by dividing the per share exercise (or threshold) price under each
such Ambanc Right by the Exchange Ratio and rounding up to the nearest cent.
Notwithstanding the provisions of clauses (iii) and (iv) of the first sentence
of this Section 3.5, each Ambanc Right which is an "incentive stock option"
shall be adjusted as required by Section 424 of the Internal Revenue Code, so as
not to constitute a modification, extension, or renewal of the option, within
the meaning of Section 424(h) of the Internal Revenue Code. UPC agrees to take
all necessary steps to effectuate the foregoing provisions of this Section 3.5.
(b) As soon as reasonably practicable after the Effective
Time, UPC shall deliver to the participants in each Ambanc Stock Plan an
appropriate notice setting forth such participant's rights pursuant thereto and
the grants pursuant to such Ambanc Stock Plan shall continue in effect on the
same terms and conditions (subject to the adjustments required by Section 3.5(a)
after giving effect to the Merger), and UPC shall comply with the terms of each
Ambanc Stock Plan to ensure, to the extent required by, and subject to the
provisions of, such Ambanc Stock Plan, that Ambanc Rights which qualified as
incentive stock options prior to the Effective Time continue to qualify as
incentive stock options after the Effective Time. At or prior to the Effective
Time, UPC shall take all corporate action necessary to reserve for issuance
sufficient shares of UPC Common Stock for delivery upon exercise of Ambanc
Rights assumed by it in accordance with this Section 3.5. As soon as reasonably
practicable after the Effective Time, UPC shall file a registration statement on
Form S-3 or Form S-8, as the case may be (or any successor or other appropriate
forms), with respect to the shares of UPC Common Stock subject to such options
and shall use its reasonable efforts to maintain the effectiveness of such
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registration statements (and maintain the current status of the prospectus or
prospectuses contained therein) for so long as such options remain outstanding.
With respect to those individuals who subsequent to the Merger will be subject
to the reporting requirements under Section 16(a) of the 1934 Act, where
applicable, UPC shall administer the Ambanc Stock Plan assumed pursuant to this
Section 3.5 in a manner that complies with Rule 16b-3 promulgated under the 1934
Act.
(c) All restrictions or limitations on transfer with respect
to Ambanc Common Stock awarded under the Ambanc Stock Plans or any other plan,
program, or arrangement of any Ambanc Company, to the extent that such
restrictions or limitations shall not have already lapsed, and except as
otherwise expressly provided in such plan, program, or arrangement, shall remain
in full force and effect with respect to shares of UPC Common Stock into which
such restricted stock is converted pursuant to Section 3.1 of this Agreement.
ARTICLE 4
EXCHANGE OF SHARES
4.1 EXCHANGE PROCEDURES. Promptly after the Effective Time, UPC and
Ambanc shall cause the exchange agent selected by UPC (the "Exchange Agent") to
mail to the former stockholders of Ambanc appropriate transmittal materials
(which shall specify that delivery shall be effected, and risk of loss and title
to the certificates theretofore representing shares of Ambanc Common Stock shall
pass, only upon proper delivery of such certificates to the Exchange Agent).
After the Effective Time, each holder of shares of Ambanc Common Stock (other
than shares to be canceled pursuant to Section 3.3 of this Agreement) issued and
outstanding at the Effective Time shall surrender the certificate or
certificates representing such shares to the Exchange Agent and shall promptly
upon surrender thereof receive in exchange therefor the consideration provided
in Section 3.1 of this Agreement, together with all undelivered dividends or
distributions in respect of such shares (without interest thereon) pursuant to
Section 4.2 of this Agreement. To the extent required by Section 3.4 of this
Agreement, each holder of shares of Ambanc Common Stock issued and outstanding
at the Effective Time also shall receive, upon surrender of the certificate or
certificates representing such shares, cash in lieu of any fractional share of
UPC Common Stock to which such holder may be otherwise entitled (without
interest). UPC shall not be obligated to deliver the consideration to which any
former holder of Ambanc Common Stock is entitled as a result of the Merger until
such holder surrenders such holder's certificate or certificates representing
the shares of Ambanc Common Stock for exchange as provided in this Section 4.1.
The certificate or certificates of Ambanc Common Stock so surrendered shall be
duly endorsed as the Exchange Agent may require. Any other provision of this
Agreement notwithstanding, neither the Surviving Corporation nor the Exchange
Agent shall be liable to a holder of Ambanc Common Stock for any amounts paid or
property delivered in good faith to a public official pursuant to any applicable
abandoned property Law.
4.2 RIGHTS OF FORMER AMBANC STOCKHOLDERS. At the Effective Time, the
stock transfer books of Ambanc shall be closed as to holders of Ambanc Capital
Stock immediately prior to the Effective Time and no transfer of Ambanc Capital
Stock by any such holder shall thereafter be made or recognized. Until
surrendered for exchange in accordance with the provisions of Section 4.1 of
this Agreement, each certificate theretofore representing shares of
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Ambanc Common Stock (other than shares to be canceled pursuant to Section 3.3 of
this Agreement) shall from and after the Effective Time represent for all
purposes only the right to receive the consideration provided in Sections 3.1
and 3.4 of this Agreement in exchange therefor, subject, however, to the
Surviving Corporation's obligation to pay any dividends or make any other
distributions with a record date prior to the Effective Time which have been
declared or made by Ambanc in respect of such shares of Ambanc Common Stock in
accordance with the terms of this Agreement and which remain unpaid at the
Effective Time. To the extent permitted by Law, former stockholders of record of
Ambanc shall be entitled to vote after the Effective Time at any meeting of UPC
stockholders the number of whole shares of UPC Common Stock into which their
respective shares of Ambanc Common Stock are converted, regardless of whether
such holders have exchanged their certificates representing Ambanc Common Stock
for certificates representing UPC Common Stock in accordance with the provisions
of this Agreement. Whenever a dividend or other distribution is declared by UPC
on the UPC Common Stock, the record date for which is at or after the Effective
Time, the declaration shall include dividends or other distributions on all
shares issuable pursuant to this Agreement, but beginning 30 days after the
Effective Time no dividend or other distribution payable to the holders of
record of UPC Common Stock as of any time subsequent to the Effective Time shall
be delivered to the holder of any certificate representing shares of Ambanc
Common Stock issued and outstanding at the Effective Time until such holder
surrenders such certificate for exchange as provided in Section 4.1 of this
Agreement. However, upon surrender of such Ambanc Common Stock certificate, both
the UPC Common Stock certificate (together with all such undelivered dividends
or other distributions without interest) and any undelivered dividends and cash
payments to be paid for fractional share interests (without interest) shall be
delivered and paid with respect to each share represented by such certificate.
ARTICLE 5
RESENTATIONS AND WARRANTIES OF AMBANC
Except as set forth in the Ambanc Disclosure Memorandum
referencing a specific section of this Agreement, Ambanc hereby represents and
warrants to UPC as follows:
5.1 ORGANIZATION, STANDING, AND POWER. Ambanc is a corporation duly
organized and validly existing under the Laws of the State of Indiana, and has
the corporate power and authority to carry on its business as now conducted and
to own, lease, and operate its Material Assets. Ambanc is duly qualified or
licensed to transact business as a foreign corporation in the States of the
United States and foreign jurisdictions where the character of its Assets or the
nature or conduct of its business requires it to be so qualified or licensed,
except for such jurisdictions in which the failure to be so qualified or
licensed is not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Ambanc.
5.2 AUTHORITY; NO BREACH BY AGREEMENT.
(a) Ambanc has the corporate power and authority necessary to
execute, deliver, and perform its obligations under this Agreement and the Plan
of Merger and to consummate the transactions contemplated hereby and thereby.
The execution, delivery, and performance of this Agreement and the Plan of
Merger, and the consummation of the
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transactions contemplated herein and therein, including the Merger, have been
duly and validly authorized by all necessary corporate action in respect thereof
on the part of Ambanc, subject to the approval of this Agreement and the Plan of
Merger by holders of a majority of the issued and outstanding shares of Ambanc
Common Stock, voting together as one class, as required by Law, which is the
only stockholder vote required for approval of this Agreement and the Plan of
Merger and consummation of the Merger by Ambanc. Subject to such requisite
stockholder approval, this Agreement and the Plan of Merger represent legal,
valid, and binding obligations of Ambanc, enforceable against Ambanc in
accordance with their respective terms (except in all cases as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, conservatorship, moratorium, or similar Laws
affecting the enforcement of creditors' rights generally and except that the
availability of the equitable remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any proceeding may
be brought).
(b) Neither the execution and delivery of this Agreement and
the Plan of Merger by Ambanc, nor the consummation by Ambanc of the transactions
contemplated hereby or thereby, nor compliance by Ambanc with any of the
provisions hereof or thereof, will (i) conflict with or result in a breach of
any provision of Ambanc's Articles of Incorporation or Bylaws or (ii) constitute
or result in a Default under, or require any Consent pursuant to, or result in
the creation of any Lien on any Asset of any Ambanc Company under, any Contract
or Permit of any Ambanc Company, where such Default or Lien, or any failure to
obtain such Consent, is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Ambanc, or (iii) subject to receipt of
the requisite Consents referred to in Section 9.1(b) of this Agreement, violate
any Law or Order applicable to any Ambanc Company or any of their respective
Material Assets.
(c) Other than in connection or compliance with the provisions
of the Securities Laws and applicable state corporate and securities Laws, and
other than Consents required from Regulatory Authorities, and other than notices
to or filings with the Internal Revenue Service or the Pension Benefit Guaranty
Corporation with respect to any employee benefit plans, or under the HSR Act,
and other than Consents, filings, or notifications which, if not obtained or
made, are not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Ambanc, no notice to, filing with, or Consent of, any
public body or authority is necessary for the consummation by Ambanc of the
Merger and the other transactions contemplated in this Agreement and the Plan of
Merger.
(d) Holders of shares of Ambanc Common Stock do not have the
right to dissent from the Merger under Chapter 44 of the IBCL.
5.3 CAPITAL STOCK.
(a) The authorized capital stock of Ambanc consists, as of the
date of this Agreement, of (i) 10,000,000 shares of Ambanc Common Stock, of
which 6,998,741 shares were issued and outstanding, and 684 shares were held by
Ambanc in treasury, as of March 31, 1998 and not more than 7,018,426 shares will
be issued and outstanding, and not more than 684 shares will be held by Ambanc
in treasury, at the Effective Time, and (ii) 200,000 shares of Ambanc Preferred
Stock, of which no shares are issued and outstanding as of the date of this
Agreement and no shares will be issued and outstanding as of the Effective Time.
All of the
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issued and outstanding shares of Ambanc Common Stock are duly and validly issued
and outstanding and are fully paid and nonassessable under the IBCL. None of the
outstanding shares of Ambanc Common Stock has been issued in violation of any
preemptive rights of the current or past stockholders of Ambanc.
(b) Except (i) as set forth in Section 5.3(a) of this
Agreement, (ii) with respect to 19,685 shares of Ambanc Common Stock subject to
outstanding options under the Ambanc Stock Plans, and (iii) as provided pursuant
to the Stock Option Agreement, there are no shares of capital stock or other
equity securities of Ambanc outstanding and no outstanding Rights relating to
the capital stock of Ambanc.
5.4 AMBANC SUBSIDIARIES. Ambanc has disclosed in Section 5.4 of the
Ambanc Disclosure Memorandum all of the Ambanc Subsidiaries. Ambanc or one of
its Subsidiaries owns all of the issued and outstanding shares of capital stock
of each Ambanc Subsidiary. No equity securities of any Ambanc Subsidiary are or
may become required to be issued (other than to another Ambanc Company) by
reason of any Rights, and there are no Contracts by which any Ambanc Subsidiary
is bound to issue (other than to another Ambanc Company) additional shares of
its capital stock or Rights or by which any Ambanc Company is or may be bound to
transfer any shares of the capital stock of any Ambanc Subsidiary (other than to
another Ambanc Company). There are no Contracts relating to the rights of any
Ambanc Company to vote or to dispose of any shares of the capital stock of any
Ambanc Subsidiary. All of the shares of capital stock of each Ambanc Subsidiary
held by an Ambanc Company are duly authorized, validly issued, and fully paid
and, except as provided in statutes pursuant to which depository institution
Subsidiaries are organized, nonassessable under the applicable corporation Law
of the jurisdiction in which such Subsidiary is incorporated or organized and
are owned by the Ambanc Company free and clear of any Lien. Each Ambanc
Subsidiary is either a bank or a corporation, and is duly organized, validly
existing, and (as to national banking associations) in good standing under the
Laws of the jurisdiction in which it is incorporated or organized, and has the
corporate power and authority necessary for it to own, lease, and operate its
Assets and to carry on its business as now conducted. Each Ambanc Subsidiary is
duly qualified or licensed to transact business as a foreign corporation in the
States of the United States and foreign jurisdictions where the character of its
Assets or the nature or conduct of its business requires it to be so qualified
or licensed, except for such jurisdictions in which the failure to be so
qualified or licensed is not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Ambanc. Each Ambanc Subsidiary that is a
depository institution is an "insured institution" as defined in the Federal
Deposit Insurance Act and applicable regulations thereunder, and the deposits in
which are insured by the Bank Insurance Fund or Savings Association Insurance
Fund.
5.5 SEC FILINGS; FINANCIAL STATEMENTS.
(a) Ambanc has filed and made available to UPC all forms,
reports, and documents required to be filed by Ambanc with the SEC since
December 31, 1993 (collectively, the "Ambanc SEC Reports"). The Ambanc SEC
Reports (i) at the time filed, complied in all Material respects with the
applicable requirements of the 1933 Act and the 1934 Act, as the case may be and
(ii) did not at the time they were filed (or if amended or superseded by a
filing prior to the date of this Agreement, then on the date of such filing)
contain any untrue statement of a Material fact or omit to state a Material fact
required to be stated in such Ambanc SEC Reports
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or necessary in order to make the statements in such Ambanc SEC Reports, in
light of the circumstances under which they were made, not misleading. None of
Ambanc's Subsidiaries is required to file any forms, reports, or other documents
with the SEC.
(b) Each of the Ambanc Financial Statements (including, in
each case, any related notes) contained in the Ambanc SEC Reports, including any
Ambanc SEC Reports filed after the date of this Agreement until the Effective
Time, complied or will comply as to form in all Material respects with the
applicable published rules and regulations of the SEC with respect thereto, was
prepared or will be prepared in accordance with GAAP applied on a consistent
basis throughout the periods involved (except as may be indicated in the notes
to such financial statements, or, in the case of unaudited statements, as
permitted by Form 10-Q of the SEC), and fairly presented or will fairly present
the consolidated financial position of Ambanc and its Subsidiaries as at the
respective dates and the consolidated results of its operations and cash flows
for the periods indicated, except that the unaudited interim financial
statements were or are subject to normal and recurring year-end adjustments
which were not or are not expected to be Material in amount or effect.
5.6 ABSENCE OF UNDISCLOSED LIABILITIES. No Ambanc Company has any
Liabilities that are reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Ambanc, except Liabilities which are
accrued or reserved against in the consolidated balance sheets of Ambanc as of
December 31, 1997, included in the Ambanc Financial Statements or reflected in
the notes thereto and except for Liabilities incurred in the ordinary course of
business subsequent to December 31, 1997. No Ambanc Company has incurred or paid
any Liability since December 31, 1997, except for such Liabilities incurred or
paid in the ordinary course of business consistent with past business practice
and which are not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Ambanc.
5.7 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since December 31, 1997,
except as disclosed in the Ambanc Financial Statements, (i) there have been no
events, changes, or occurrences which have had, or are reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on Ambanc and
(ii) the Ambanc Companies have conducted their respective businesses in the
ordinary and usual course (excluding the incurrence of expenses in connection
with this Agreement and the transactions contemplated hereby).
5.8 TAX MATTERS.
(a) All Tax Returns required to be filed by or on behalf of
any of the Ambanc Companies have been timely filed, or requests for extensions
have been timely filed, granted, and have not expired for periods ended on or
before December 31, 1996, and, to the Knowledge of Ambanc, all Tax Returns filed
are complete and accurate in all Material respects. All Tax Returns for periods
ending on or before the date of the most recent fiscal year end immediately
preceding the Effective Time will be timely filed or requests for extensions
will be timely filed. All Taxes shown on filed Tax Returns have been paid. There
is no audit examination, deficiency, or refund Litigation with respect to any
Taxes, that is reasonably likely to result in a determination that would have,
individually or in the aggregate, a Material Adverse Effect on Ambanc, except to
the extent reserved against in the Ambanc Financial Statements dated prior to
the date of this Agreement. All Taxes and other Liabilities due with respect to
completed and settled examinations or concluded Litigation have been paid.
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(b) None of the Ambanc Companies has executed an extension or
waiver of any statute of limitations on the assessment or collection of any Tax
due (excluding such statutes that relate to years currently under examination by
the Internal Revenue Service or other applicable taxing authorities) that is
currently in effect.
(c) Adequate provision for any Taxes due or to become due for
any of the Ambanc Companies for the period or periods through and including the
date of the respective Ambanc Financial Statements has been made and is
reflected on such Ambanc Financial Statements.
(d) Each of the Ambanc Companies is in compliance with, and
its records contain all information and documents (including properly completed
IRS Forms W-9) necessary to comply with, all applicable information reporting
and Tax withholding requirements under federal, state, and local Tax Laws, and
such records identify with specificity all accounts subject to backup
withholding under Section 3406 of the Internal Revenue Code, except for such
instances of noncompliance and such omissions as are not reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on Ambanc.
(e) None of the Ambanc Companies has made any payments, is
obligated to make any payments, or is a party to any contract, agreement, or
other arrangement that could obligate it to make any payments that would be
disallowed as a deduction under Section 280G or 162(m) of the Internal Revenue
Code.
(f) There are no Material Liens with respect to Taxes upon any
of the Assets of the Ambanc Companies.
(g) No Ambanc Company has filed any consent under Section
341(f) of the Internal Revenue Code concerning collapsible corporations.
5.9 ASSETS. The Ambanc Companies have good and marketable title, free
and clear of all Liens, to all of their respective Assets, except where the
failure to have such good and marketable title is not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Ambanc. All
tangible properties used in the businesses of the Ambanc Companies are in good
condition, reasonable wear and tear excepted, and are usable in the ordinary
course of business consistent with Ambanc's past practices. All Assets which are
Material to Ambanc's business on a consolidated basis, held under leases or
subleases by any of the Ambanc Companies, are held under valid Contracts
enforceable in accordance with their respective terms (except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium,
or other Laws affecting the enforcement of creditors' rights generally and
except that the availability of the equitable remedy of specific performance or
injunctive relief is subject to the discretion of the court before which any
proceedings may be brought), and each such Contract is in full force and effect.
The Ambanc Companies currently maintain insurance in amounts, scope, and
coverage reasonably necessary for their operations. None of the Ambanc Companies
has received notice from any insurance carrier that (i) such insurance will be
canceled or that coverage thereunder will be reduced or eliminated or (ii)
premium costs with respect to such policies of insurance will be substantially
increased. The Assets of the Ambanc Companies include all Assets required to
operate the business of the Ambanc Companies as presently conducted.
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5.10 ENVIRONMENTAL MATTERS.
(a) To the Knowledge of Ambanc, each Ambanc Company, its
Participation Facilities, and its Loan Properties are, and have been, in
compliance with all Environmental Laws, except those violations which are not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on Ambanc.
(b) There is no Litigation pending or, to the Knowledge of
Ambanc, threatened before any court, governmental agency, or authority, or other
forum in which any Ambanc Company or any of its Participation Facilities has
been or, with respect to threatened Litigation, may reasonably be expected to be
named as a defendant (i) for alleged noncompliance (including by any
predecessor) with any Environmental Law or (ii) relating to the release into the
environment of any Hazardous Material, whether or not occurring at, on, under,
or involving a site owned, leased, or operated by any Ambanc Company or any of
its Participation Facilities, except for such Litigation pending or threatened
that is not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Ambanc.
(c) There is no Litigation pending, or to the Knowledge of
Ambanc, threatened before any court, governmental agency, or board, or other
forum in which any of its Loan Properties (or Ambanc in respect of such Loan
Property) has been or, with respect to threatened Litigation, may reasonably be
expected to be named as a defendant or potentially responsible party (i) for
alleged noncompliance (including by any predecessor) with any Environmental Law
or (ii) relating to the release into the environment of any Hazardous Material,
whether or not occurring at, on, under, or involving a Loan Property, except for
such Litigation pending or threatened that is not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Ambanc.
(d) To the Knowledge of Ambanc, there is no reasonable basis
for any Litigation of a type described in subsections (b) or (c), except such as
is not reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on Ambanc.
(e) To the Knowledge of Ambanc, during the period of (i) any
Ambanc Company's ownership or operation of any of their respective current
properties, (ii) any Ambanc Company's participation in the management of any
Participation Facility, or (iii) any Ambanc Company's holding of a security
interest in a Loan Property, there have been no releases of Hazardous Material
in, on, under, or affecting (or potentially affecting) such properties, except
such as are not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Ambanc. To the Knowledge of Ambanc, prior to the
period of (i) any Ambanc Company's ownership or operation of any of their
respective current properties, (ii) any Ambanc Company's participation in the
management of any Participation Facility, or (iii) any Ambanc Company's holding
of a security interest in a Loan Property, to the Knowledge of Ambanc, there
were no releases of Hazardous Material in, on, under, or affecting any such
property, Participation Facility, or Loan Property, except such as are not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on Ambanc.
5.11 COMPLIANCE WITH LAWS. Ambanc is duly registered as a bank holding
company under the BHC Act. Each Ambanc Company has in effect all Permits
necessary for it to own, lease, or operate its Material Assets and to carry on
its business as now conducted,
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except for those Permits the absence of which are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Ambanc, and there
has occurred no Default under any such Permit, other than Defaults which are not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on Ambanc. None of the Ambanc Companies:
(a) is in violation of any Laws, Orders, or Permits applicable
to its business or employees conducting its business, except for violations
which are not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Ambanc; and
(b) has received any notification or communication from any
agency or department of federal, state, or local government or any Regulatory
Authority or the staff thereof (i) asserting that any Ambanc Company is not in
compliance with any of the Laws or Orders which such governmental authority or
Regulatory Authority enforces, where such noncompliance is reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on Ambanc,
(ii) threatening to revoke any Permits, the revocation of which is reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
Ambanc, or (iii) requiring any Ambanc Company (x) to enter into or consent to
the issuance of a cease and desist order, formal agreement, directive,
commitment, or memorandum of understanding, or (y) to adopt any Board resolution
or similar undertaking, which restricts materially the conduct of its business,
or in any manner relates to its capital adequacy, its credit or reserve
policies, its management, or the payment of dividends.
5.12 LABOR RELATIONS. No Ambanc Company is the subject of any
Litigation asserting that it or any other Ambanc Company has committed an unfair
labor practice (within the meaning of the National Labor Relations Act or
comparable state Law) or seeking to compel it or any other Ambanc Company to
bargain with any labor organization as to wages or conditions of employment, nor
is any Ambanc Company a party to or bound by any collective bargaining
agreement, Contract, or other agreement or understanding with a labor union or
labor organization, nor is there any strike or other labor dispute involving any
Ambanc Company, pending or, to the Knowledge of Ambanc, threatened, or to the
Knowledge of Ambanc, is there any activity involving any Ambanc Company's
employees seeking to certify a collective bargaining unit or engaging in any
other organization activity.
5.13 EMPLOYEE BENEFIT PLANS.
(a) Ambanc has disclosed to UPC in writing prior to the
execution of the Agreement and in Section 5.13 of the Ambanc Disclosure
Memorandum, and has delivered or made available to UPC prior to the execution of
this Agreement correct and complete copies in each case of, all Material Ambanc
Benefits Plans. For purposes of this Agreement, "Ambanc Benefit Plans" means all
pension, retirement, profit-sharing, deferred compensation, stock option,
employee stock ownership, severance pay, vacation, bonus, or other incentive
plan, all other written employee programs or agreements, all medical, vision,
dental, or other health plans, all life insurance plans, and all other employee
benefit plans or fringe benefit plans, including, without limitation, "employee
benefit plans" as that term is defined in Section 3(3) of ERISA maintained by,
sponsored in whole or in part by, or contributed to by, any Ambanc Company for
the benefit of employees, retirees, dependents, spouses, directors, independent
contractors, or other beneficiaries and under which employees, retirees,
dependents, spouses, directors, independent contractors, or other beneficiaries
are eligible to participate. Any of the Ambanc
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Benefit Plans which is an "employee welfare benefit plan," as that term is
defined in Section 3(l) of ERISA, or an "employee pension benefit plan," as that
term is defined in Section 3(2) of ERISA, is referred to herein as a "Ambanc
ERISA Plan." Any Ambanc ERISA Plan which is also a "defined benefit plan" (as
defined in Section 414(j) of the Internal Revenue Code or Section 3(35) of
ERISA) is referred to herein as a "Ambanc Pension Plan." Neither Ambanc nor any
Ambanc Company has an "obligation to contribute" (as defined in ERISA Section
4212) to a "multiemployer plan" (as defined in ERISA Sections 4001(a)(3) and
3(37)(A)). Each "employee pension benefit plan," as defined in Section 3(2) of
ERISA, maintained by any Ambanc Company at any time during the last six years
that was intended to qualify under Section 401(a) of the Internal Revenue Code
and with respect to which any Ambanc Company has any Liability, is disclosed as
such in Section 5.13 of the Ambanc Disclosure Memorandum.
(b) Ambanc has delivered or made available to UPC prior to the
execution of this Agreement correct and complete copies of the following
documents: (i) all trust agreements or other funding arrangements for such
Ambanc Benefit Plans (including insurance contracts), and all amendments
thereto, (ii) with respect to any such Ambanc Benefit Plans or amendments
thereto, all determination letters, rulings, opinion letters, information
letters, or advisory opinions issued by the Internal Revenue Service, the United
States Department of Labor, or the Pension Benefit Guaranty Corporation after
December 31, 1994, (iii) annual reports or returns, audited or unaudited
financial statements, actuarial valuations and reports, and summary annual
reports prepared for any Ambanc Benefit Plan with respect to the most recent
plan year, and (iv) the most recent summary plan descriptions and any
modifications thereto.
(c) All Ambanc Benefit Plans are in compliance with the
applicable terms of ERISA, the Internal Revenue Code, and any other applicable
Laws, the breach or violation of which is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Ambanc. Each
Ambanc ERISA Plan which is intended to be qualified under Section 401(a) of the
Internal Revenue Code has received a favorable determination letter from the
Internal Revenue Service, and Ambanc is not aware of any circumstances which
could reasonably result in revocation of any such favorable determination
letter. Each trust created under any Ambanc ERISA Plan has been determined to be
exempt from Tax under Section 501(a) of the Internal Revenue Code and Ambanc is
not aware of any circumstance which could reasonably result in revocation of
such exemption. With respect to each Ambanc Benefit Plan to the Knowledge of
Ambanc, no event has occurred which could reasonably give rise to a loss of any
intended Tax consequences under the Internal Revenue Code or to any Tax under
Section 511 of the Internal Revenue Code that is reasonably likely, individually
or in the aggregate, to have a Material Adverse Effect on Ambanc. There is no
Material pending or, to the Knowledge of Ambanc, threatened Litigation (other
than routine claims for benefits) relating to any Ambanc ERISA Plan.
(d) No Ambanc Company has engaged in a transaction with
respect to any Ambanc Benefit Plan that, assuming the Taxable Period of such
transaction expired as of the date of this Agreement, would subject any Ambanc
Company to a Material Tax or penalty imposed by either Section 4975 of the
Internal Revenue Code or Section 502(i) of ERISA in amounts which are reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
Ambanc. Neither Ambanc nor, to the Knowledge of Ambanc, any administrator or
fiduciary of any Ambanc Benefit Plan (or any agent of any of the foregoing) has
engaged in any transaction, or acted or failed to act in any manner which could
subject Ambanc to any direct or indirect Liability (by indemnity or otherwise)
for breach of any fiduciary, co-fiduciary, or other
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duty under ERISA, where such Liability, individually or in the aggregate, is
reasonably likely to have a Material Adverse Effect on Ambanc. Except as
disclosed under Section 5.13 of the Ambanc Disclosure Memorandum, no oral or
written representation or communication with respect to any aspect of the Ambanc
Benefit Plans has been made to employees of any Ambanc Company which is not in
accordance with the written or otherwise preexisting terms and provisions of
such plans, where any Liability with respect to such representation or
disclosure is reasonably likely to have a Material Adverse Effect on Ambanc.
(e) No Ambanc Pension Plan has any "unfunded current
liability," as that term is defined in Section 302(d)(8)(A) of ERISA, and the
fair market value of all benefits (whether vested or not) accrued to date by all
present or former participants in such Ambanc Pension Plan exceeds the plan's
"benefit liabilities" as that term is defined in Section 4001(a)(16) of ERISA.
For this purpose, the assumptions for valuing plan Assets or Liabilities shall
be the assumptions set forth in the most recent actuarial valuations and reports
with respect to any such Ambanc Pension Plan. Since the date of the most recent
actuarial valuation, there has been (i) no Material change in the financial
position or funded status of any Ambanc Pension Plan, (ii) no change in the
actuarial assumptions with respect to any Ambanc Pension Plan, and (iii) no
increase in benefits under any Ambanc Pension Plan as a result of plan
amendments or changes in applicable Law, any of which is reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on Ambanc.
Neither any Ambanc Pension Plan nor any "single-employer plan," within the
meaning of Section 4001(a)(15) of ERISA, currently or formerly maintained by any
Ambanc Company, or the single-employer plan of any entity which is considered
one employer with Ambanc under Section 4001 of ERISA or Section 414 of the
Internal Revenue Code or Section 302 of ERISA (a "Ambanc ERISA Affiliate") has
an "accumulated funding deficiency" within the meaning of Section 412 of the
Internal Revenue Code or Section 302 of ERISA (whether or not waived). All
contributions with respect to a Ambanc Pension Plan or any single-employer plan
of an Ambanc ERISA Affiliate have or will be timely made and there is no lien or
expected to be a lien under Internal Revenue Code Section 412(n) or ERISA
Section 302(f) or Tax under Internal Revenue Code Section 4971. No Ambanc
Company has provided, or is required to provide, security to an Ambanc Pension
Plan or to any single-employer plan of an Ambanc ERISA Affiliate pursuant to
Section 401(a)(29) of the Internal Revenue Code. All premiums required to be
paid under ERISA Section 4006 have been timely paid by Ambanc, except to the
extent any failure would not have a Material Adverse Effect on Ambanc.
(f) No Liability under Title IV of ERISA has been or is
expected to be incurred by any Ambanc Company with respect to any defined
benefit plan currently or formerly maintained by any of them or by any Ambanc
ERISA Affiliate that has not been satisfied in full (other than Liability for
Pension Benefit Guaranty Corporation premiums, which have been paid when due)
except to the extent any failure would not have a Material Adverse Effect on
Ambanc.
(g) Except as set forth in Section 5.13(g) of the Ambanc
Disclosure Memorandum, no Ambanc Company has any obligations for retiree health
and retiree life benefits under any of the Ambanc Benefit Plans other than with
respect to benefit coverage mandated by applicable Law.
(h) Except as set forth in Section 5.13(h) of the Ambanc
Disclosure Memorandum, neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby will, by themselves,
(i) result in any payment (including, without
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limitation, severance, golden parachute, or otherwise) becoming due to any
director or any employee of any Ambanc Company from any Ambanc Company under any
Ambanc Benefit Plan or otherwise, (ii) increase any benefits otherwise payable
under any Ambanc Benefit Plan, or (iii) result in any acceleration of the time
of payment or vesting of any such benefit.
5.14 MATERIAL CONTRACTS. Except as set forth in Section 5.14 of the
Ambanc Disclosure Memorandum, none of the Ambanc Companies, nor any of their
respective Assets, businesses, or operations, is a party to, or is bound or
affected by, or receives benefits under, (i) any employment, severance,
termination, consulting, or retirement Contract providing for aggregate payments
to any Person in any calendar year in excess of $100,000, (ii) any Contract
relating to the borrowing of money by any Ambanc Company or the guarantee by any
Ambanc Company of any such obligation (other than Contracts evidencing deposit
liabilities, purchases of federal funds, fully-secured repurchase agreements,
and Federal Home Loan Bank advances of depository institution Subsidiaries,
trade payables, and Contracts relating to borrowings or guarantees made in the
ordinary course of business), and (iii) any other Contract or amendment thereto
that would be required to be filed as an exhibit to a Form 10-K filed by Ambanc
with the SEC as of the date of this Agreement that has not been filed as an
exhibit to Ambanc's Form 10-K filed for the fiscal year ended December 31, 1997,
or in another SEC Document (together with all Contracts referred to in Sections
5.9 and 5.13(a) of this Agreement, the "Ambanc Contracts"). With respect to each
Ambanc Contract: (i) the Contract is in full force and effect; (ii) no Ambanc
Company is in Default thereunder, other than Defaults which are not reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
Ambanc; (iii) no Ambanc Company has repudiated or waived any Material provision
of any such Contract; and (iv) no other party to any such Contract is, to the
Knowledge of Ambanc, in Default in any respect, other than Defaults which are
not reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on Ambanc, or has repudiated or waived any Material provision
thereunder.
5.15 LEGAL PROCEEDINGS.
(a) There is no Litigation instituted or pending, or, to the
Knowledge of Ambanc, threatened (or unasserted but considered probable of
assertion and which if asserted would have at least a reasonable probability of
an unfavorable outcome to any Ambanc Company) against any Ambanc Company, or
against any Asset, employee benefit plan, interest, or right of any of them,
that is reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on Ambanc, nor are there any Orders of any Regulatory
Authorities, other governmental authorities, or arbitrators outstanding against
any Ambanc Company, that are reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Ambanc.
(b) Section 5.15(b) of the Ambanc Disclosure Memorandum
includes a summary report of all Litigation as of the date of this Agreement to
which any Ambanc Company is a party and which names an Ambanc Company as a
defendant or cross-defendant and where the maximum exposure is estimated to be
$100,000 or more.
5.16 REPORTS. Since January 1, 1994, or the date of organization if
later, each Ambanc Company has timely filed all reports and statements, together
with any amendments required to be made with respect thereto, that it was
required to file with any Regulatory Authorities, except failures to file which
are not reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on Ambanc. As of their respective dates, each of such reports and
documents,
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including the financial statements, exhibits, and schedules thereto, complied in
all Material respects with all applicable Laws.
5.17 STATEMENTS TRUE AND CORRECT. None of the information supplied or
to be supplied by any Ambanc Company regarding Ambanc for inclusion in the
Registration Statement to be filed by UPC with the SEC will, when the
Registration Statement becomes effective, be false or misleading with respect to
any Material fact, or contain any untrue statement of a Material fact, or omit
to state any Material fact required to be stated thereunder or necessary to make
the statements therein not misleading. None of the information supplied or to be
supplied by any Ambanc Company for inclusion in the Proxy Statement to be mailed
to Ambanc's stockholders in connection with the Stockholders' Meeting will, when
first mailed to the stockholders of Ambanc, be false or misleading with respect
to any Material fact, or contain any misstatement of Material fact, or omit to
state any Material fact required to be stated thereunder or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, or, in the case of the Proxy Statement or any amendment
thereof or supplement thereto, at the time of the Stockholders' Meeting, be
false or misleading with respect to any Material fact, or omit to state any
Material fact required to be stated thereunder or necessary to correct any
Material statement in any earlier communication with respect to the solicitation
of any proxy for the Stockholders' Meetings. All documents that any Ambanc
Company is responsible for filing with any Regulatory Authority in connection
with the transactions contemplated hereby will comply as to form in all Material
respects with the provisions of applicable Law.
5.18 ACCOUNTING, TAX, AND REGULATORY MATTERS. No Ambanc Company has
taken or agreed to take any action, and Ambanc has no Knowledge of any fact or
circumstance that is reasonably likely to (i) prevent the transactions
contemplated hereby, including the Merger, from qualifying for
pooling-of-interests accounting treatment or as a reorganization within the
meaning of Section 368(a) of the Internal Revenue Code or (ii) materially impede
or delay receipt of any Consents of Regulatory Authorities referred to in
Section 9.1(b) of this Agreement or result in the imposition of a condition or
restriction of the type referred to in the last sentence of such Section.
5.19 STATE TAKEOVER LAWS. Each Ambanc Company has taken all necessary
action to exempt the transactions contemplated by this Agreement and the Plan of
Merger from any applicable "moratorium," "control share," "fair price,"
"business combination," or other anti-takeover laws and regulations, including
Chapters 42 and 43 of the IBCL, of the State of Indiana (collectively, "Takeover
Laws").
5.20 CHARTER PROVISIONS. Each Ambanc Company has taken all action so
that the entering into of this Agreement and the Plan of Merger and the
consummation of the Merger and the other transactions contemplated by this
Agreement and the Plan of Merger do not and will not result in the grant of any
rights to any Person under the Articles of Incorporation, Bylaws, or other
governing instruments of any Ambanc Company or restrict or impair the ability of
UPC or any of its Subsidiaries to vote, or otherwise to exercise the rights of a
stockholder with respect to, shares of any Ambanc Company that may be directly
or indirectly acquired or controlled by it. Sections 1 and 2 of Article X of the
Restated Articles of Incorporation of Ambanc do not and will not apply to any of
the transactions contemplated by this Agreement, the Plan of Merger or the Stock
Option Agreement.
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5.21 RIGHTS AGREEMENT. Ambanc is not a party to any rights agreement or
rights plan as a result of which any Person has or any acquire any Rights with
respect to Ambanc Capital Stock.
5.22 DERIVATIVES. All interest rate swaps, caps, floors, option
agreements, futures and forward contracts, and other similar risk management
arrangements, whether entered into for Ambanc's own account, or for the account
of one or more the Ambanc Subsidiaries or their customers, were entered into (i)
in accordance with prudent business practices and all applicable Laws and (ii)
with counterparties believed to be financially responsible.
5.23 YEAR 2000. Ambanc has disclosed to UPC a complete and accurate
copy of Ambanc's plan, including an estimate of the anticipated associated
costs, for implementing modifications to Ambanc's hardware, software, and
computer systems, chips, and microprocessors, to ensure proper execution and
accurate processing of all date-related data, whether from years in the same
century or in different centuries. Between the date of this Agreement and the
Effective Time, Ambanc shall endeavor to continue its efforts to implement such
plan.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF UPC
UPC hereby represents and warrants to Ambanc as follows:
6.1 ORGANIZATION, STANDING, AND POWER. UPC is a corporation duly
organized and validly existing under the Laws of the State of Tennessee, and has
the corporate power and authority to carry on its business as now conducted and
to own, lease, and operate its Material Assets. UPC is duly qualified or
licensed to transact business as a foreign corporation in the States of the
United States and foreign jurisdictions where the character of its Assets or the
nature or conduct of its business requires it to be so qualified or licensed,
except for such jurisdictions in which the failure to be so qualified or
licensed is not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on UPC.
6.2 AUTHORITY; NO BREACH BY AGREEMENT.
(a) UPC has the corporate power and authority necessary to
execute, deliver, and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery, and
performance of this Agreement and the consummation of the transactions
contemplated herein, including the Merger, have been duly and validly authorized
by all necessary corporate action in respect thereof on the part of UPC, subject
to the approval of the UPC Charter Amendment by holders of the requisite number
of shares of UPC Common Stock required by Law, which is the only stockholder
vote required for the consummation of the Merger by UPC. Subject to such
requisite stockholder approval, this Agreement represents a legal, valid, and
binding obligation of UPC, enforceable against UPC in accordance with its terms
(except in all cases as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, receivership, conservatorship,
moratorium, or similar Laws affecting the enforcement of creditors' rights
generally and except that the availability of the
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equitable remedy of specific performance or injunctive relief is subject to the
discretion of the court before which any proceeding may be brought).
(b) Neither the execution and delivery of this Agreement by
UPC, nor the consummation by UPC of the transactions contemplated hereby, nor
compliance by UPC with any of the provisions hereof, will (i) conflict with or
result in a breach of any provision of UPC's Restated Charter or Bylaws (subject
to the amendment of the UPC Restated Charter pursuant to the UPC Charter
Amendment to increase the number of authorized shares of UPC Common Stock), (ii)
constitute or result in a Default under, or require any Consent pursuant to, or
result in the creation of any Lien on any Asset of any UPC Company under, any
Contract or Permit of any UPC Company, where such Default or Lien, or any
failure to obtain such Consent, is reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on UPC, or (iii) subject to receipt of
the requisite Consents referred to in Section 9.1(b) of this Agreement, violate
any Law or Order applicable to any UPC Company or any of their respective
Material Assets.
(c) Other than in connection or compliance with the provisions
of the Securities Laws, applicable state corporate and securities Laws, and
rules of the NYSE, and other than Consents required from Regulatory Authorities,
and other than notices to or filings with the Internal Revenue Service or the
Pension Benefit Guaranty Corporation with respect to any employee benefit plans,
or under the HSR Act, and other than Consents, filings, or notifications which,
if not obtained or made, are not reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on UPC, no notice to, filing with, or
Consent of, any public body or authority is necessary for the consummation by
UPC of the Merger and the other transactions contemplated in this Agreement.
6.3 CAPITAL STOCK. The authorized capital stock of UPC consists of (i)
100,000,000 shares of UPC Common Stock as of the date of this Agreement, of
which 81,650,946 shares are issued and outstanding as of December 31, 1997 and
(ii) 10,000,000 shares of UPC Preferred Stock, of which 2,188,358 shares of UPC
Series E Preferred Stock were issued and outstanding as of December 31, 1997.
All of the issued and outstanding shares of UPC Capital Stock are, and (subject
to the amendment of UPC's Restated Charter pursuant to the UPC Charter
Amendment) all of the shares of UPC Common Stock to be issued in exchange for
shares of Ambanc Common Stock upon consummation of the Merger when issued in
accordance with the terms of this Agreement, will be, duly and validly issued
and outstanding and fully paid and nonassessable under the TBCA. None of the
outstanding shares of UPC Capital Stock has been, and none of the shares of UPC
Common Stock to be issued in exchange for shares of Ambanc Common Stock upon
consummation of the Merger will be, issued in violation of any preemptive rights
of the current or past stockholders of UPC.
6.4 UPC SUBSIDIARIES. Except with respect to Capital Factors, Inc. or
as otherwise disclosed in the UPC SEC Reports, UPC or one of its Subsidiaries
owns all of the issued and outstanding shares of capital stock of each UPC
Subsidiary. No equity securities of any UPC Subsidiary are or may become
required to be issued (other than to another UPC Company) by reason of any
Rights, and there are no Contracts by which any UPC Subsidiary is bound to issue
(other than to another UPC Company) additional shares of its capital stock or
Rights or by which any UPC Company is or may be bound to transfer any shares of
the capital stock of any UPC Subsidiary (other than to another UPC Company).
There are no Contracts relating to the rights
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of any UPC Company to vote or to dispose of any shares of the capital stock of
any UPC Subsidiary. All of the shares of capital stock of each UPC Subsidiary
held by a UPC Company are duly authorized, validly issued, fully paid and,
except as provided in statutes pursuant to which depository institution
Subsidiaries are organized, nonassessable under the applicable corporation Law
of the jurisdiction in which such Subsidiary is incorporated or organized and
are owned by the UPC Company free and clear of any Lien. Each UPC Subsidiary is
either a bank or a corporation, and is duly organized, validly existing, and (as
to national banking associations) in good standing under the Laws of the
jurisdiction in which it is incorporated or organized, and has the corporate
power and authority necessary for it to own, lease, and operate its Assets and
to carry on its business as now conducted. Each UPC Subsidiary is duly qualified
or licensed to transact business as a foreign corporation in the States of the
United States and foreign jurisdictions where the character of its Assets or the
nature or conduct of its business requires it to be so qualified or licensed,
except for such jurisdictions in which the failure to be so qualified or
licensed is not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on UPC. Each UPC Subsidiary that is a depository
institution is an "insured institution" as defined in the Federal Deposit
Insurance Act and applicable regulations thereunder, and the deposits in which
are insured by the Bank Insurance Fund or Savings Association Insurance Fund.
6.5 SEC FILINGS; FINANCIAL STATEMENTS.
(a) UPC has filed and made available to Ambanc all forms,
reports, and documents required to be filed by UPC with the SEC since December
31, 1993 (collectively, the "UPC SEC Reports"). The UPC SEC Reports (i) at the
time filed, complied in all Material respects with the applicable requirements
of the 1933 Act and the 1934 Act, as the case may be and (ii) did not at the
time they were filed (or if amended or superseded by a filing prior to the date
of this Agreement, then on the date of such filing) contain any untrue statement
of a Material fact or omit to state a Material fact required to be stated in
such UPC SEC Reports or necessary in order to make the statements in such UPC
SEC Reports, in light of the circumstances under which they were made, not
misleading. Except for UPC Subsidiaries that are registered as a broker, dealer,
or investment advisor or filings required due to fiduciary holdings of the UPC
Subsidiaries, none of UPC Subsidiaries is required to file any forms, reports,
or other documents with the SEC.
(b) Each of the UPC Financial Statements (including, in each
case, any related notes) contained in the UPC SEC Reports, including any UPC SEC
Reports filed after the date of this Agreement until the Effective Time,
complied or will comply as to form in all Material respects with the applicable
published rules and regulations of the SEC with respect thereto, was or will be
prepared in accordance with GAAP applied on a consistent basis throughout the
periods involved (except as may be indicated in the notes to such financial
statements or, in the case of unaudited statements, as permitted by Form 10-Q of
the SEC), and fairly presented or will fairly present the consolidated financial
position of UPC and its Subsidiaries as at the respective dates and the
consolidated results of its operations and cash flows for the periods indicated,
except that the unaudited interim financial statements were or are subject to
normal and recurring year-end adjustments which were not or are not expected to
be Material in amount or effect.
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6.6 ABSENCE OF UNDISCLOSED LIABILITIES. No UPC Company has any
Liabilities that are reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on UPC, except Liabilities which are
accrued or reserved against in the consolidated balance sheets of UPC as of
December 31, 1997, included in the UPC Financial Statements or reflected in the
notes thereto and except for Liabilities incurred in the ordinary course of
business subsequent to December 31, 1997. No UPC Company has incurred or paid
any Liability since December 31, 1997, except for such Liabilities incurred or
paid in the ordinary course of business consistent with past business practice
and which are not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on UPC.
6.7 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since December 31, 1997,
except as disclosed in the UPC Financial Statements delivered prior to the date
of this Agreement, (i) there have been no events, changes or occurrences which
have had, or are reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on UPC and (ii) the UPC Companies have conducted their
respective businesses in the ordinary and usual course (excluding the incurrence
of expenses in connection with this Agreement and the transactions contemplated
hereby).
6.8 TAX MATTERS.
(a) All Tax Returns required to be filed by or on behalf of
any of the UPC Companies have been timely filed, or requests for extensions have
been timely filed, granted, and have not expired for periods ended on or before
December 31, 1996, and, to the Knowledge of UPC, all Tax Returns filed are
complete and accurate in all Material respects. All Tax Returns for periods
ending on or before the date of the most recent fiscal year end immediately
preceding the Effective Time will be timely filed or requests for extensions
will be timely filed. All Taxes shown on filed Tax Returns have been paid. There
is no audit examination, deficiency, or refund Litigation with respect to any
Taxes, that is reasonably likely to result in a determination that would have,
individually or in the aggregate, a Material Adverse Effect on UPC, except to
the extent reserved against in the UPC Financial Statements dated prior to the
date of this Agreement. All Taxes and other Liabilities due with respect to
completed and settled examinations or concluded Litigation have been paid.
(b) None of the UPC Companies has executed an extension or
waiver of any statute of limitations on the assessment or collection of any Tax
due (excluding such statutes that relate to years currently under examination by
the Internal Revenue Service or other applicable taxing authorities) that is
currently in effect.
(c) Adequate provision for any Taxes due or to become due for
any of the UPC Companies for the period or periods through and including the
date of the respective UPC Financial Statements has been made and is reflected
on such UPC Financial Statements.
(d) Each of the UPC Companies is in compliance with, and its
records contain all information and documents (including properly completed IRS
Forms W-9) necessary to comply with, all applicable information reporting and
Tax withholding requirements under federal, state, and local Tax Laws, and such
records identify with specificity all accounts subject to backup withholding
under Section 3406 of the Internal Revenue Code, except for such instances
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of noncompliance and such omissions as are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on UPC.
(e) None of the UPC Companies has made any payments, is
obligated to make any payments, or is a party to any contract, agreement, or
other arrangement that could obligate it to make any payments that would be
disallowed as a deduction under Section 280G or 162(m) of the Internal Revenue
Code.
(f) There are no Material Liens with respect to Taxes upon any
of the Assets of the UPC Companies.
(g) No UPC Company has filed any consent under Section 341(f)
of the Internal Revenue Code concerning collapsible corporations.
6.9 ASSETS. The UPC Companies have good and marketable title, free and
clear of all Liens, to all of their respective Assets, except where the failure
to have such good and marketable title is not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on UPC. All tangible
properties used in the businesses of the UPC Companies are in good condition,
reasonable wear and tear excepted, and are usable in the ordinary course of
business consistent with UPC's past practices. All Assets which are Material to
UPC's business on a consolidated basis, held under leases or subleases by any of
the UPC Companies, are held under valid Contracts enforceable in accordance with
their respective terms (except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or other Laws affecting the
enforcement of creditors' rights generally and except that the availability of
the equitable remedy of specific performance or injunctive relief is subject to
the discretion of the court before which any proceedings may be brought), and
each such Contract is in full force and effect. The UPC Companies currently
maintain insurance sufficient in amounts, scope, and coverage reasonably
necessary for their operations. None of the UPC Companies has received notice
from any insurance carrier that (i) such insurance will be canceled or that
coverage thereunder will be reduced or eliminated or (ii) premium costs with
respect to such policies of insurance will be substantially increased. The
Assets of the UPC Companies include all Assets required to operate the business
of the UPC Companies as presently conducted.
6.10 ENVIRONMENTAL MATTERS.
(a) To the Knowledge of UPC, each UPC Company, its
Participation Facilities, and its Loan Properties are, and have been, in
compliance with all Environmental Laws, except those violations which are not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on UPC.
(b) There is no Litigation pending or, to the Knowledge of
UPC, threatened before any court, governmental agency, or authority, or other
forum in which any UPC Company or any of its Participation Facilities has been
or, with respect to threatened Litigation, may reasonably be expected to be
named as a defendant (i) for alleged noncompliance (including by any
predecessor) with any Environmental Law or (ii) relating to the release into the
environment of any Hazardous Material, whether or not occurring at, on, under,
or involving a site owned, leased, or operated by any UPC Company or any of its
Participation Facilities, except for
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such Litigation pending or threatened that is not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on UPC.
(c) There is no Litigation pending or, to the Knowledge of
UPC, threatened before any court, governmental agency, or board, or other forum
in which any of its Loan Properties (or UPC in respect of such Loan Property)
has been or, with respect to threatened Litigation, may reasonably be expected
to be named as a defendant or potentially responsible party (i) for alleged
noncompliance (including by any predecessor) with any Environmental Law or (ii)
relating to the release into the environment of any Hazardous Material, whether
or not occurring at, on, under, or involving a Loan Property, except for such
Litigation pending or threatened that is not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on UPC.
(d) To the Knowledge of UPC, there is no reasonable basis for
any Litigation of a type described in subsections (b) or (c), except such as is
not reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on UPC.
(e) To the Knowledge of UPC, during the period of (i) any UPC
Company's ownership or operation of any of their respective current properties,
(ii) any UPC Company's participation in the management of any Participation
Facility, or (iii) any UPC Company's holding of a security interest in a Loan
Property, there have been no releases of Hazardous Material in, on, under, or
affecting (or potentially affecting) such properties, except such as are not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on UPC. To the Knowledge of UPC, prior to the period of (i) any UPC
Company's ownership or operation of any of their respective current properties,
(ii) any UPC Company's participation in the management of any Participation
Facility, or (iii) any UPC Company's holding of a security interest in a Loan
Property, to the Knowledge of UPC, there were no releases of Hazardous Material
in, on, under, or affecting any such property, Participation Facility, or Loan
Property, except such as are not reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on UPC.
6.11 COMPLIANCE WITH LAWS. UPC is duly registered as a bank holding
company under the BHC Act. Each UPC Company has in effect all Permits necessary
for it to own, lease, or operate its Material Assets and to carry on its
business as now conducted, except for those Permits the absence of which are not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on UPC, and there has occurred no Default under any such Permit, other
than Defaults which are not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on UPC. None of the UPC Companies:
(a) is in violation of any Laws, Orders, or Permits applicable
to its business or employees conducting its business, except for violations
which are not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on UPC; and
(b) has received any notification or communication from any
agency or department of federal, state, or local government or any Regulatory
Authority or the staff thereof (i) asserting that any UPC Company is not in
compliance with any of the Laws or Orders which such governmental authority or
Regulatory Authority enforces, where such noncompliance is reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on UPC, (ii)
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threatening to revoke any Permits, the revocation of which is reasonably likely
to have, individually or in the aggregate, a Material Adverse Effect on UPC, or
(iii) requiring any UPC Company (x) to enter into or consent to the issuance of
a cease and desist order, formal agreement, directive, commitment, or memorandum
of understanding, or (y) to adopt any Board resolution or similar undertaking,
which restricts materially the conduct of its business, or in any manner relates
to its capital adequacy, its credit or reserve policies, its management, or the
payment of dividends.
6.12 LABOR RELATIONS. No UPC Company is the subject of any Litigation
asserting that it or any other UPC Company has committed an unfair labor
practice (within the meaning of the National Labor Relations Act or comparable
state Law) or seeking to compel it or any other UPC Company to bargain with any
labor organization as to wages or conditions of employment, nor is any UPC
Company a party to or bound by any collective bargaining agreement, Contract, or
other agreement or understanding with a labor union or labor organization, nor
is there any strike or other labor dispute involving any UPC Company, pending
or, to the Knowledge of UPC, threatened, or to the Knowledge of UPC, is there
any activity involving any UPC Company's employees seeking to certify a
collective bargaining unit or engaging in any other organization activity.
6.13 LEGAL PROCEEDINGS. There is no Litigation instituted or pending,
or, to the Knowledge of UPC, threatened (or unasserted but considered probable
of assertion and which if asserted would have at least a reasonable probability
of an unfavorable outcome to any UPC Company) against any UPC Company, or
against any Asset, employee benefit plan, interest, or right of any of them,
that is reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on UPC, nor are there any Orders of any Regulatory Authorities,
other governmental authorities, or arbitrators outstanding against any UPC
Company, that are reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on UPC.
6.14 REPORTS. Since January 1, 1994, or the date of organization if
later, each UPC Company has timely filed all reports and statements, together
with any amendments required to be made with respect thereto, that it was
required to file with any Regulatory Authorities, except failures to file which
are not reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on UPC. As of their respective dates, each of such reports and
documents, including the financial statements, exhibits, and schedules thereto,
complied in all Material respects with all applicable Laws.
6.15 STATEMENTS TRUE AND CORRECT. None of the information supplied or
to be supplied by any UPC Company regarding UPC for inclusion in the
Registration Statement to be filed by UPC with the SEC will, when the
Registration Statement becomes effective, be false or misleading with respect to
any Material fact, or contain any untrue statement of a Material fact, or omit
to state any Material fact required to be stated thereunder or necessary to make
the statements therein not misleading. None of the information supplied or to be
supplied by any UPC Company for inclusion in the Proxy Statement to be mailed to
Ambanc's stockholders in connection with the Stockholders' Meeting, will, when
first mailed to the stockholders of Ambanc, be false or misleading with respect
to any Material fact, or contain any misstatement of Material fact, or omit to
state any Material fact required to be stated thereunder or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, or, in the case of the Proxy Statement or any amendment
thereof or supplement thereto, at the
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time of the Stockholders' Meeting, be false or misleading with respect to any
Material fact, or omit to state any Material fact required to be stated
thereunder or necessary to correct any Material statement in any earlier
communication with respect to the solicitation of any proxy for the
Stockholders' Meeting. All documents that any UPC Company is responsible for
filing with any Regulatory Authority in connection with the transactions
contemplated hereby will comply as to form in all Material respects with the
provisions of applicable Law.
6.16 ACCOUNTING, TAX, AND REGULATORY MATTERS. No UPC Company or any
Affiliate thereof has taken or agreed to take any action, and UPC has no
Knowledge of any fact or circumstance that is reasonably likely to (i) prevent
the transactions contemplated hereby, including the Merger, from qualifying for
pooling-of-interests accounting treatment or as a reorganization within the
meaning of Section 368(a) of the Internal Revenue Code or (ii) materially impede
or delay receipt of any Consents of Regulatory Authorities referred to in
Section 9.1(b) of this Agreement or result in the imposition of a condition or
restriction of the type referred to in the last sentence of such Section.
6.17 EMPLOYEE BENEFIT PLANS. All UPC Plans are in compliance with the
applicable terms of ERISA, the Internal Revenue Code, and any other applicable
Laws, the breach or violation of which is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on UPC. For purposes
of this Agreement, the term "UPC Plan" means each bonus, incentive compensation,
severance pay, medical or other insurance program, retirement plan, or other
employee benefit plan program, agreement, or arrangement sponsored, maintained,
or contributed to by UPC or any trade or business, whether or not incorporated,
that together with UPC or any of its Subsidiaries would be deemed a "single
employer" under Section 4001 of ERISA or Section 414 of the Internal Revenue
Code (a "UPC ERISA Affiliate") or under which UPC or any UPC ERISA Affiliate has
any Liability or obligation. No Liability under Title IV of ERISA has been
incurred by UPC or any UPC ERISA Affiliate that has not been satisfied in full,
and no condition exists that presents a Material risk to UPC or any UPC ERISA
Affiliate of incurring any such Liability. With respect to any UPC Plan that is
subject to Title IV of ERISA, full payment has been made, or will be made in
accordance with Section 404(a)(6) of the Internal Revenue Code, of all amounts
that UPC or any UPC ERISA Affiliate is required to pay under Section 412 of the
Internal Revenue Code or under the terms of the UPC Plans, and no accumulated
funding deficiency (within the meaning of Section 412 of the Internal Revenue
Code or Section 302 of ERISA, whether or not waived) exists with respect to any
UPC Plan. There are no Material actions, suits, or claims pending, or, to the
Knowledge of UPC, threatened or anticipated relating to any UPC Plan. There has
been no Material adverse change in the financial position or funded status of
any UPC Plan that is subject to Title IV of ERISA since the date of the
information relating to the financial position and funded status of each such
plan contained in the most recent Annual Report on Form 10-K filed by UPC with
the SEC.
6.18 DERIVATIVES. All interest rate swaps, caps, floors, option
agreements, futures and forward contracts, and other similar risk management
arrangements, whether entered into for UPC's own account, or for the account of
one or more the UPC Subsidiaries or their customers, were entered into (i) in
accordance with prudent business practices and all applicable Laws and (ii) with
counterparties believed to be financially responsible.
6.19 YEAR 2000. UPC has disclosed to Ambanc a complete and accurate
copy of UPC's plan, including an estimate of the anticipated associated costs,
for implementing
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modifications to UPC's hardware, software, and computer systems, chips, and
microprocessors, to ensure proper execution and accurate processing of all
date-related data, whether from years in the same century or in different
centuries. Between the date of this Agreement and the Effective Time, UPC shall
endeavor to continue its efforts to implement such plan.
ARTICLE 7
CONDUCT OF BUSINESS PENDING CONSUMMATION
7.1 AFFIRMATIVE COVENANTS OF BOTH PARTIES. From the date of this
Agreement until the earlier of the Effective Time or the termination of this
Agreement, unless the prior written consent of the other Party shall have been
obtained, and except as otherwise expressly contemplated herein, each Party
shall and shall cause each of its Subsidiaries to (i) operate its business only
in the usual, regular, and ordinary course, (ii) preserve intact its business
organization and Assets and maintain its rights and franchises, (iii) use its
reasonable efforts to maintain its current employee relationships, and (iv) take
no action which would (a) adversely affect the ability of any Party to obtain
any Consents required for the transactions contemplated hereby without
imposition of a condition or restriction of the type referred to in the last
sentence of Section 9.1(b) of this Agreement, or (b) adversely affect the
ability of any Party to perform its covenants and agreements under this
Agreement; provided that in the case of UPC, the provisions of this Section 7.1
(other than the provisions of clause (iv) above) shall not be deemed to preclude
UPC from continuing to implement its program of acquiring unaffiliated
depository and nondepository institutions.
7.2 NEGATIVE COVENANTS OF AMBANC. From the date of this Agreement until
the earlier of the Effective Time or the termination of this Agreement, Ambanc
covenants and agrees that it will not do or agree or commit to do, or permit any
of its Subsidiaries to do or agree or commit to do, any of the following without
the prior written consent of the chief executive officer or chief financial
officer of UPC, which consent shall not be unreasonably withheld:
(a) amend the Articles of Incorporation, Bylaws, or other
governing instruments of any Ambanc Company, or
(b) incur, guarantee, or otherwise become responsible for, any
additional debt obligation or other obligation for borrowed money (other than
indebtedness of an Ambanc Company to another Ambanc Company) in excess of an
aggregate of $50,000 (for the Ambanc Companies on a consolidated basis), except
in the ordinary course of the business consistent with past practices (which
shall include, for Ambanc Subsidiaries that are depository institutions,
creation of deposit liabilities, purchases of federal funds, advances from the
Federal Reserve Bank or Federal Home Loan Bank, and entry into repurchase
agreements fully secured by U.S. government or agency securities), or impose, or
suffer the imposition, on any Asset of any Ambanc Company of any Lien or permit
any such Lien to exist (other than in connection with deposits, repurchase
agreements, bankers acceptances, "treasury tax and loan" accounts established in
the ordinary course of business, the satisfaction of legal requirements in the
exercise of trust powers, and Liens in effect as of the date hereof that are
disclosed in the Ambanc Disclosure Memorandum); or
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(c) repurchase, redeem, or otherwise acquire or exchange
(other than exchanges in the ordinary course under employee benefit plans),
directly or indirectly, any shares, or any securities convertible into any
shares, of the capital stock of any Ambanc Company, or declare or pay any
dividend or make any other distribution in respect of Ambanc's capital stock,
provided that Ambanc may (to the extent legally and contractually permitted to
do so), but shall not be obligated to, declare and pay regular quarterly cash
dividends on the shares of Ambanc Common Stock at a rate of $0.12 per share,
with usual and regular record and payment dates in accordance with past practice
as disclosed in Section 7.2(c) of the Ambanc Disclosure Memorandum and such
dates may not be changed without the prior written consent of UPC; provided,
that, notwithstanding the provisions of Section 1.3 of this Agreement, the
Parties shall cooperate in selecting the Effective Time to ensure that, with
respect to the quarterly period in which the Effective Time occurs, the holders
of Ambanc Common Stock do not receive both a dividend in respect of their Ambanc
Common Stock and a dividend in respect of UPC Common Stock or fail to receive
any dividend; or
(d) except for this Agreement, or pursuant to the Stock Option
Agreement or pursuant to the exercise of Rights outstanding as of the date of
this Agreement and pursuant to the terms thereof in existence on the date of
this Agreement, issue, sell, pledge, encumber, authorize the issuance of, enter
into any Contract to issue, sell, pledge, encumber, or authorize the issuance
of, or otherwise permit to become outstanding, any additional shares of Ambanc
Common Stock or any other capital stock of any Ambanc Company, or any stock
appreciation rights, or any option, warrant, conversion, or other right to
acquire any such stock, or any security convertible into any such stock; or
(e) adjust, split, combine, or reclassify any capital stock of
any Ambanc Company or issue or authorize the issuance of any other securities in
respect of or in substitution for shares of Ambanc Common Stock, or sell, lease,
mortgage, or otherwise dispose of or otherwise encumber (i) any shares of
capital stock of any Ambanc Subsidiary (unless any such shares of stock are sold
or otherwise transferred to another Ambanc Company) or (ii) any Asset having a
book value in excess of $50,000 other than in the ordinary course of business
for reasonable and adequate consideration; or
(f) except for purchases of investment securities acquired in
the ordinary course of business consistent with past practice, purchase any
securities or make any Material investment, either by purchase of stock or
securities, contributions to capital, Asset transfers, or purchase of any
Assets, in any Person other than a wholly-owned Ambanc Subsidiary, or otherwise
acquire direct or indirect control over any Person, other than in connection
with (i) foreclosures in the ordinary course of business, (ii) acquisitions of
control by a depository institution Subsidiary in its fiduciary capacity, or
(iii) the creation of new wholly-owned Subsidiaries organized to conduct or
continue activities otherwise permitted by this Agreement; or
(g) grant any increase in compensation or benefits to the
employees or officers of any Ambanc Company, except in accordance with the
ordinary course of business consistent with past practice or as required by Law;
pay any severance or termination pay or any bonus other than pursuant to written
policies or written Contracts in effect on the date of this Agreement; enter
into or amend any severance agreements with officers of any Ambanc Company;
grant any Material increase in fees or other increases in compensation or other
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benefits to directors of any Ambanc Company except in accordance with the
ordinary course of business consistent with past practice; or voluntarily
accelerate the vesting of any stock options or other stock-based compensation or
employee benefits; or
(h) enter into or amend any employment Contract between any
Ambanc Company and any Person (unless such amendment is required by Law or a
pre-existing contractual obligation) that the Ambanc Company does not have the
unconditional right to terminate without Liability (other than Liability for
services already rendered), at any time on or after the Effective Time; or
(i) adopt any new employee benefit plan of any Ambanc Company
or make any Material change in or to any existing employee benefit plans of any
Ambanc Company other than any such change that is required by Law or that, in
the opinion of counsel, is necessary or advisable to maintain the tax qualified
status of any such plan; or
(j) make any significant change in any Tax or accounting
methods or systems of internal accounting controls, except as may be appropriate
to conform to changes in Tax Laws or regulatory accounting requirements or GAAP;
or
(k) commence any Litigation other than as necessary for the
prudent operation of its business or settle any Litigation involving any
Liability of any Ambanc Company for Material money damages or restrictions upon
the operations of any Ambanc Company; or
(l) except in the ordinary course of business, modify, amend,
or terminate any Material Contract or waive, release, compromise, or assign any
Material rights or claims.
7.3 ADVERSE CHANGES IN CONDITION. Each Party agrees to give written
notice promptly to the other Party upon becoming aware of the occurrence or
impending occurrence of any event or circumstance relating to it or any of its
Subsidiaries which (i) is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on it or (ii) would cause or constitute a
Material breach of any of its representations, warranties, or covenants
contained herein, and to use its reasonable efforts to prevent or promptly to
remedy the same.
7.4 REPORTS. Each Party and its Subsidiaries shall file all reports
required to be filed by it with Regulatory Authorities between the date of this
Agreement and the Effective Time and shall deliver to the other Party copies of
all such reports promptly after the same are filed. If financial statements are
contained in any such reports filed with the SEC, such financial statements will
fairly present the consolidated financial position of the entity filing such
statements as of the dates indicated and the consolidated results of operations,
changes in stockholders' equity, and cash flows for the periods then ended in
accordance with GAAP (subject in the case of interim financial statements to
normal recurring year-end adjustments that are not Material). As of their
respective dates, such reports filed with the SEC will comply in all Material
respects with the Securities Laws and will not contain any untrue statement of a
Material fact or omit to state a Material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. Any financial statements contained
in any other reports to another Regulatory Authority shall be prepared in
accordance with Laws applicable to such reports.
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ARTICLE 8
ADDITIONAL AGREEMENTS
8.1 REGISTRATION STATEMENT; PROXY STATEMENT; STOCKHOLDER APPROVALS. As
soon as reasonably practicable after execution of this Agreement, UPC shall file
the Registration Statement with the SEC, and shall use its reasonable efforts to
cause the Registration Statement to become effective under the 1933 Act and take
any action required to be taken under the applicable state Blue Sky or
securities Laws in connection with the issuance of the shares of UPC Common
Stock upon consummation of the Merger. Ambanc shall furnish all information
concerning it and the holders of its capital stock as UPC may reasonably request
in connection with such action. Ambanc shall call a Stockholders' Meeting, to be
held as soon as reasonably practicable after the Registration Statement is
declared effective by the SEC, for the purpose of voting upon approval of (i)
this Agreement and the Plan of Merger and (ii) such other related matters as it
deems appropriate. In connection with the Stockholders' Meeting, (i) Ambanc
shall prepare and file with the SEC a Proxy Statement and mail such Proxy
Statement to Ambanc's stockholders, (ii) the Parties shall furnish to each other
all information concerning them that they may reasonably request in connection
with such Proxy Statement, (iii) the Board of Directors of Ambanc shall
recommend to Ambanc's stockholders the approval of the matters submitted for
approval, and (iv) the Board of Directors and officers of Ambanc shall use their
reasonable efforts to obtain such stockholders' approvals, provided that Ambanc
may withdraw, modify, or change in an adverse manner to UPC its recommendations
if the Board of Directors of Ambanc, after having consulted with and based upon
the advice of outside counsel, determines in good faith that the failure to so
withdraw, modify, or change its recommendation could constitute a breach of the
fiduciary duties of Ambanc's Board of Directors under applicable Law. In
addition, nothing in this Section 8.1 or elsewhere in this Agreement shall
prohibit accurate disclosure by either Party of information that is required to
be disclosed in the Registration Statement or the Proxy Statement or in any
other document required to be filed with the SEC (including, without limitation,
a Solicitation/Recommendation Statement on Schedule 14D-9) or otherwise required
to be publicly disclosed by applicable Law or regulations or rules of the NYSE.
8.2 EXCHANGE LISTING. UPC shall use its reasonable efforts to list,
prior to the Effective Time, on the NYSE, subject to official notice of
issuance, the shares of UPC Common Stock to be issued to the holders of Ambanc
Common Stock pursuant to the Merger.
8.3 APPLICATIONS. UPC shall promptly prepare and file, and Ambanc shall
cooperate in the preparation and, where appropriate, filing of, applications
with all Regulatory Authorities having jurisdiction over the transactions
contemplated by this Agreement seeking the requisite Consents necessary to
consummate the transactions contemplated by this Agreement.
8.4 FILINGS WITH STATE OFFICES. Upon the terms and subject to the
conditions of this Agreement, UPC shall cause UPHC to execute and file the
Articles of Merger with the Secretary of State of the State of Indiana and the
Secretary of State of the State of Tennessee.
8.5 AGREEMENT AS TO EFFORTS TO CONSUMMATE. Subject to the terms and
conditions of this Agreement, each Party agrees to use, and to cause its
Subsidiaries to use, its reasonable efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, all
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things necessary, proper, or advisable under applicable Laws to consummate and
make effective, as soon as reasonably practicable after the date of this
Agreement, the transactions contemplated by this Agreement, including, without
limitation, using its reasonable efforts to lift or rescind any Order adversely
affecting its ability to consummate the transactions contemplated herein and to
cause to be satisfied the conditions referred to in Article 9 of this Agreement;
provided, that nothing herein shall preclude either Party from exercising its
rights under this Agreement. Each Party shall use, and shall cause each of its
Subsidiaries to use, its reasonable efforts to obtain all Consents necessary or
desirable for the consummation of the transactions contemplated by this
Agreement.
8.6 INVESTIGATION AND CONFIDENTIALITY.
(a) Prior to the Effective Time, each Party shall keep the
other Party advised of all Material developments relevant to its business and to
consummation of the Merger and shall permit the other Party to make or cause to
be made such investigation of the business and properties of it and its
Subsidiaries and of their respective financial and legal conditions as the other
Party reasonably requests, provided that such investigation shall be reasonably
related to the transactions contemplated hereby and shall not interfere
unnecessarily with normal operations. No investigation by a Party shall affect
the representations and warranties of the other Party.
(b) Each Party shall, and shall cause its advisers and agents
to, maintain the confidentiality of all confidential information furnished to it
by the other Party concerning its and its Subsidiaries' businesses, operations,
and financial positions and shall not use such information for any purpose
except in furtherance of the transactions contemplated by this Agreement. If
this Agreement is terminated prior to the Effective Time, each Party shall
promptly return or certify the destruction of all documents and copies thereof,
and all work papers containing confidential information received from the other
Party.
(c) Each Party agrees to give the other Party notice as soon
as practicable after any determination by it of any fact or occurrence relating
to the other Party which it has discovered through the course of its
investigation and which represents, or is reasonably likely to represent, either
a Material breach of any representation, warranty, covenant, or agreement of the
other Party or which has had or is reasonably likely to have a Material Adverse
Effect on the other Party.
(d) Neither Party nor any of their respective Subsidiaries
shall be required to provide access to or to disclose information where such
access or disclosure would violate or prejudice the rights of its customers,
jeopardize the attorney-client or similar privilege with respect to such
information or contravene any Law, rule, regulation, Order, judgment, decree,
fiduciary duty, or agreement entered into prior to the date of this Agreement.
The Parties will use their reasonable efforts to make appropriate substitute
disclosure arrangements, to the extent practicable, in circumstances in which
the restrictions of the preceding sentence apply.
8.7 PRESS RELEASES. Prior to the Effective Time, UPC and Ambanc shall
consult with each other as to the form and substance of any press release or
other public disclosure materially related to this Agreement or any other
transaction contemplated hereby; provided, that nothing in this Section 8.7
shall be deemed to prohibit any Party from making any disclosure which its
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counsel deems necessary or advisable in order to satisfy such Party's disclosure
obligations imposed by Law.
8.8 CERTAIN ACTIONS. Except with respect to this Agreement and the Plan
of Merger and the transactions contemplated hereby and thereby, no Ambanc
Company nor any Affiliate thereof nor any Representatives thereof retained by
any Ambanc Company shall directly or indirectly solicit or engage in
negotiations concerning any Acquisition Proposal, or provide any confidential
information or assistance to, or have any discussions with, any Person with
respect to an Acquisition Proposal. Notwithstanding the foregoing, Ambanc may,
and may authorize and permit its Representatives to, provide Persons with
confidential information, have discussions or negotiations with, or otherwise
facilitate an effort or attempt by such Person to make or implement an
Acquisition Proposal not solicited in violation of this Agreement if Ambanc's
Board of Directors, after having consulted with, and based upon the advice of,
outside counsel, determines in good faith that the failure to take such actions
could constitute a breach of the fiduciary duties of Ambanc's Board of Directors
under applicable Law; provided, that Ambanc shall promptly advise UPC following
the receipt of any Acquisition Proposal and the Material details thereof; and,
provided further, that prior to delivery of confidential information relating to
Ambanc or access to Ambanc's books, records, or properties in connection
therewith, the other Person shall have entered into a confidentiality agreement
substantially similar to the Confidentiality Agreement previously entered into
between Ambanc and UPC. Nothing contained in this Section 8.8 shall prohibit the
Board of Directors of Ambanc from complying with Rule 14e-2, promulgated under
the 1934 Act. Ambanc shall (i) immediately cease and cause to be terminated any
existing activities, discussions, or negotiations with any Persons conducted
heretofore with respect to any of the foregoing and (ii) direct and use its
reasonable efforts to cause of all its Representatives not to engage in any of
the foregoing.
8.9 ACCOUNTING AND TAX TREATMENT. Each of the Parties undertakes and
agrees to use its reasonable efforts to cause the Merger, and to take no action
which would cause the Merger not, to qualify for treatment as a
pooling-of-interests for accounting purposes or as a "reorganization" within the
meaning of Section 368(a) of the Internal Revenue Code for federal income tax
purposes.
8.10 STATE TAKEOVER LAWS. Each Ambanc Company shall take all necessary
steps to exempt the transactions contemplated by this Agreement and the Plan of
Merger from, or if necessary challenge the validity or applicability of, any
applicable Takeover Laws.
8.11 CHARTER PROVISIONS. Each Ambanc Company shall take all necessary
action to ensure that the entering into of this Agreement and the Plan of Merger
and the consummation of the Merger and the other transactions contemplated
hereby and thereby do not and will not result in the grant of any rights to any
Person under the Articles of Incorporation, Bylaws, or other governing
instruments of any Ambanc Company or restrict or impair the ability of UPC or
any of its Subsidiaries to vote, or otherwise to exercise the rights of a
stockholder with respect to, shares of any Ambanc Company that may be directly
or indirectly acquired or controlled by it.
8.12 AGREEMENT OF AFFILIATES. Ambanc has disclosed in Section 8.12 of
the Ambanc Disclosure Memorandum each Person whom it reasonably believes may be
deemed an "affiliate" of Ambanc for purposes of Rule 145 under the 1933 Act.
Ambanc shall use its reasonable efforts to cause each such Person to deliver to
UPC not later than 30 days prior to
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the Effective Time, a written agreement, in substantially the form of Exhibit 3,
providing that such Person will not sell, pledge, transfer, or otherwise dispose
of the shares of Ambanc Common Stock held by such Person except as contemplated
by such agreement or by this Agreement and will not sell, pledge, transfer, or
otherwise dispose of the shares of UPC Common Stock to be received by such
Person upon consummation of the Merger except in compliance with applicable
provisions of the 1933 Act and the rules and regulations thereunder and until
such time as financial results covering at least 30 days of combined operations
of UPC and Ambanc have been published within the meaning of Section 201.01 of
the SEC's Codification of Financial Reporting Policies. Shares of UPC Common
Stock issued to such affiliates of Ambanc in exchange for shares of Ambanc
Common Stock shall not be transferable until such time as financial results
covering at least 30 days of combined operations of UPC and Ambanc have been
published within the meaning of Section 201.01 of the SEC's Codification of
Financial Reporting Policies, regardless of whether each such affiliate has
provided the written agreement referred to in this Section 8.12 (and UPC shall
be entitled to place restrictive legends upon certificates for shares of UPC
Common Stock issued to affiliates of Ambanc pursuant to this Agreement to
enforce the provisions of this Section 8.12). UPC shall not be required to
maintain the effectiveness of the Registration Statement under the 1933 Act for
the purposes of resale of UPC Common Stock by such affiliates.
8.13 EMPLOYEE BENEFITS AND CONTRACTS. Following the Effective Time, but
in no event earlier than the consolidation of Ambanc's depository institution
Subsidiaries with UPC's depository institution Subsidiaries, UPC shall provide
to officers and employees of the Ambanc Companies (the "Continuing Employees"),
employee benefits under employee benefit plans on terms and conditions which
when taken as a whole are substantially similar to those currently provided by
the UPC Companies to their similarly situated officers and employees. For
purposes of participation, vesting, and benefit accruals (but not accrual of
benefits under UPC's tax-qualified retirement plans) under such employee benefit
plans, (i) service under any qualified defined benefit or contribution plans of
Ambanc shall be treated as service under UPC's qualified defined benefit or
contribution plans and (ii) service under any other employee benefit plans of
Ambanc shall be treated as service under any similar employee benefit plans
maintained by UPC. UPC shall cause the UPC welfare benefit plans that cover the
Continuing Employees after the Effective Time to (i) waive any waiting period
and restrictions and limitations for preexisting conditions or insurability and
(ii) cause any deductible, co-insurance, or maximum out-of-pocket payments made
by the Continuing Employees under Ambanc's welfare benefit plans to be credited
to such Continuing Employees under the UPC welfare benefit plans, so as to
reduce the amount of any deductible, co-insurance, or maximum out-of-pocket
payments payable by the Continuing Employees under the UPC welfare benefit
plans. Prior to the commencement of the Continuing Employee's participation in
the UPC employee benefit plans and programs, the benefit coverage of, and
participation in benefit plans by, the Continuing Employees shall continue under
the Ambanc Benefit Plans, as in effect immediately prior to the Effective Time.
During such transition period, the coverage under and participation in the
Ambanc Benefit Plans shall be deemed to provide the Continuing Employees with
benefits that are no less favorable than those offered to other employees of UPC
and its Subsidiaries. Except as expressly provided in the Supplemental Letter,
UPC also shall cause Ambanc and its Subsidiaries to honor all employment,
severance, consulting, and other compensation Contracts disclosed in Section
8.13 of the Ambanc Disclosure Memorandum to UPC between any Ambanc Company and
any current or former director, officer, independent contractor, or employee
thereof, and all provisions of the Ambanc Benefit Plans.
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8.14 INDEMNIFICATION.
(a) After the Effective Time, UPC shall indemnify, defend and
hold harmless the present and former directors, officers, employees, and agents
of Ambanc or any of Ambanc's Subsidiaries (each, a "Indemnified Party")
(including any person who becomes a director, officer, employee, or agent prior
to the Effective Time) against all Liabilities (including reasonable attorneys'
fees, and expenses, judgments, fines and amounts paid in settlement) arising out
of actions or omissions occurring at or prior to the Effective Time (including
the transactions contemplated by this Agreement and the Stock Option Agreement)
to the full extent permitted under Indiana Law and by Ambanc's Articles of
Incorporation and Bylaws, as in effect on the date hereof and any indemnity
agreements entered into prior to the date of this Agreement by any of the Ambanc
Companies and any director, officer, employee, or agent of any of the Ambanc
Companies, including, without limitation, provisions relating to advances of
expenses incurred in the defense of any Litigation. Without limiting the
foregoing, in any case in which approval by UPC is required to effectuate any
indemnification, UPC shall direct, at the election of the Indemnified Party,
that the determination of any such approval shall be made by independent counsel
mutually agreed upon between UPC and the Indemnified Party.
(b) UPC and the Surviving Corporation shall use their
reasonable efforts (and Ambanc shall cooperate prior to the Effective Time in
these efforts) to maintain in effect for a period of three years after the
Effective Time, Ambanc's existing directors' and officers' liability insurance
policy (provided that UPC and the Surviving Corporation may substitute therefor
(i) policies of at least the same coverage and amounts containing terms and
conditions which are substantially no less advantageous or (ii) with the consent
of Ambanc given prior to the Effective Time, any other policy) with respect to
claims arising from facts or events which occurred prior to the Effective Time
and covering persons who are currently covered by such insurance; provided, that
the Surviving Corporation shall not be obligated to make aggregate annual
premium payments for such three-year period in respect of such policy (or
coverage replacing such policy) which exceed, for the portion related to
Ambanc's directors and officers, 150% of the annual premium payments on Ambanc's
current policy in effect as of the date of this Agreement (the "Maximum
Amount"). If the amount of the premiums necessary to maintain or procure such
insurance coverage exceeds the Maximum Amount, UPC shall use its reasonable
efforts to maintain the most advantageous policies of directors' and officers'
liability insurance obtainable for a premium equal to the Maximum Amount.
(c) Any Indemnified Party wishing to claim indemnification
under paragraph (a) of this Section 8.14, upon learning of any such Liability or
Litigation, shall promptly notify UPC thereof, provided that the failure so to
notify shall not affect the obligations of UPC under this Section 8.14 unless
and to the extent such failure materially increases UPC's Liability under this
Section 8.14. In the event of any such Litigation (whether arising before or
after the Effective Time), (i) UPC or the Surviving Corporation shall have the
right to assume the defense thereof and UPC shall not be liable to such
Indemnified Parties for any legal expenses of other counsel or any other
expenses subsequently incurred by such Indemnified Parties in connection with
the defense thereof, except that if UPC or the Surviving Corporation elects not
to assume such defense or counsel for the Indemnified Parties advises that there
are substantive issues which raise conflicts of interest between UPC or the
Surviving Corporation and the Indemnified Parties, the Indemnified Parties may
retain counsel satisfactory to them, and UPC or the Surviving Corporation shall
pay all reasonable fees and expenses of such counsel for the Indemnified
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Parties promptly as statements therefor are received; provided, that UPC shall
be obligated pursuant to this paragraph (c) to pay for only one firm of counsel
for all Indemnified Parties in any jurisdiction, (ii) the Indemnified Parties
will cooperate in the defense of any such Litigation, and (iii) UPC shall not be
liable for any settlement effected without its prior written consent; and
provided further that the Surviving Corporation shall not have any obligation
hereunder to any Indemnified Party when and if a court of competent jurisdiction
shall determine, and such determination shall have become final, that the
indemnification of such Indemnified Party in the manner contemplated hereby is
prohibited by applicable Law.
(d) The Surviving Corporation shall not be liable for any
settlement effected without its prior written consent which shall not be
unreasonably withheld.
(e) If either UPC or the Surviving Corporation or any of their
respective successors or assigns shall consolidate with or merge into any other
Person and shall not be the continuing or surviving Person of such consolidation
or merger or shall transfer all or substantially all of its Assets to any
Person, then and in each case, proper provision shall be made so that the
successors and assigns of either UPC or the Surviving Corporation shall assume
the obligations set forth in this Section 8.14.
(f) UPC shall pay all reasonable costs, including attorneys'
fees, that may be incurred by any Indemnified Party in enforcing the indemnity
and other obligations provided for in this Section 8.14.
(g) The provisions of this Section 8.14 are intended to be for
the benefit of, and shall be enforceable by, each Indemnified Party and his or
her heirs or representatives.
8.15 CERTAIN MODIFICATIONS. UPC and Ambanc shall consult with respect
to their loan, litigation, and real estate valuation policies and practices
(including loan classifications and levels of reserves) and Ambanc shall make
such modifications or changes to its policies and practices, if any, prior to
the Effective Time, as may be mutually agreed upon. UPC and Ambanc also shall
consult with respect to the character, amount, and timing of restructuring and
Merger-related expense charges to be taken by each of the Parties in connection
with the transactions contemplated by this Agreement and shall take such charges
in accordance with GAAP as may be mutually agreed upon by the Parties. Neither
Party's representations, warranties, and covenants contained in this Agreement
shall be deemed to be inaccurate or breached in any respect as a consequence of
any modifications or charges undertaken solely on account of this Section 8.15.
ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE
9.1 CONDITIONS TO OBLIGATIONS OF EACH PARTY. The respective obligations
of each Party to perform this Agreement and the Plan of Merger and to consummate
the Merger and the other transactions contemplated hereby are subject to the
satisfaction of the following conditions, unless waived by both Parties pursuant
to Section 11.6 of this Agreement:
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(a) STOCKHOLDER APPROVALS. The stockholders of Ambanc shall
have approved this Agreement and the Plan of Merger and the consummation of the
transactions contemplated hereby and thereby, including the Merger, as and to
the extent required by Law and by the provisions of any governing instruments.
The stockholders of UPC shall have approved the UPC Charter Amendment as and to
the extent required by Law, by the provisions of any governing instruments, and
by the rules of the NYSE.
(b) REGULATORY APPROVALS. All Consents of, filings and
registrations with, and notifications to, all Regulatory Authorities required
for consummation of the Merger shall have been obtained or made and shall be in
full force and effect and all waiting periods required by Law shall have
expired. No Consent obtained from any Regulatory Authority which is necessary to
consummate the transactions contemplated hereby shall be conditioned or
restricted in a manner (excluding requirements relating to the raising of
additional capital or the disposition of Assets or deposits) which in the
reasonable good faith judgment of the Board of Directors of UPC would so
materially adversely impact the economic or business benefits of the
transactions contemplated by this Agreement so as to render inadvisable the
consummation of the Merger.
(c) CONSENTS AND APPROVALS. Each Party shall have obtained any
and all Consents required for consummation of the Merger (other than those
referred to in Section 9.1(b) of this Agreement) or for the preventing of any
Default under any Contract or Permit of such Party which, if not obtained or
made, is reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on such Party.
(d) LEGAL PROCEEDINGS. No court or governmental or Regulatory
Authority of competent jurisdiction shall have enacted, issued, promulgated,
enforced, or entered any Law or Order (whether temporary, preliminary, or
permanent) or taken any other action which prohibits, restricts, or makes
illegal consummation of the transactions contemplated by this Agreement.
(e) REGISTRATION STATEMENT. The Registration Statement shall
be effective under the 1933 Act, no stop orders suspending the effectiveness of
the Registration Statement shall have been issued, no action, suit, proceeding,
or investigation by the SEC to suspend the effectiveness thereof shall have been
initiated and be continuing, and all necessary approvals under state securities
Laws or the 1933 Act or 1934 Act relating to the issuance or trading of the
shares of UPC Common Stock issuable pursuant to the Merger shall have been
received.
(f) EXCHANGE LISTING. The shares of UPC Common Stock issuable
pursuant to the Merger shall have been approved for listing on the NYSE, subject
to official notice of issuance.
(g) TAX MATTERS. Ambanc shall have received a written opinion
from Leagre Xxxxxxxx & Xxxxxxx and UPC shall have received a written opinion
from Xxxxx, Tarrant & Xxxxx in each case in a form reasonably satisfactory to
such Party (the "Tax Opinions"), dated the date of the Effective Time,
substantially to the effect that (i) the Merger will constitute a reorganization
within the meaning of Section 368(a) of the Internal Revenue Code, (ii) no gain
or loss will be recognized by holders of Ambanc Common Stock who exchange all of
their Ambanc Common
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Stock solely for UPC Common Stock pursuant to the Merger (except with respect to
any cash received in lieu of a fractional share interest in UPC Common Stock),
(iii) the tax basis of the UPC Common Stock received by holders of Ambanc Common
Stock who exchange all of their Ambanc Common Stock solely for UPC Common Stock
in the Merger will be the same as the tax basis of the Ambanc Common Stock
surrendered in exchange for the UPC Common Stock (reduced by an amount allocable
to a fractional share interest in UPC Common Stock for which cash is received),
and (iv) the holding period of the UPC Common Stock received by holders who
exchange all of their Ambanc Common Stock solely for UPC Common Stock in the
Merger will be the same as the holding period of the Ambanc Common Stock
surrendered in exchange therefor, provided that such Ambanc Common Stock is held
as a capital asset at the Effective Time. In rendering such Tax Opinions, such
counsel shall be entitled to rely upon representations of officers of Ambanc and
UPC reasonably satisfactory in form and substance to such counsel.
(h) POOLING LETTERS. Each Party shall have received a letter,
dated as of the Effective Time, in a form reasonably acceptable to such Party,
from Price Waterhouse LLP to the effect that the Merger will qualify for
pooling-of-interests accounting treatment. Each Party shall have received a
letter, dated as of the Effective Time, in a form reasonably acceptable to such
Party, from Deloitte & Touche LLP to the effect that such firm is not aware of
any matters relating to Ambanc and its Subsidiaries which would preclude the
Merger from qualifying for pooling-of-interests accounting treatment.
9.2 CONDITIONS TO OBLIGATIONS OF UPC. The obligations of UPC to perform
this Agreement and consummate the Merger and the other transactions contemplated
hereby are subject to the satisfaction of the following conditions, unless
waived by UPC pursuant to Section 11.6(a) of this Agreement:
(a) REPRESENTATIONS AND WARRANTIES. For purposes of this
Section 9.2(a), the accuracy of the representations and warranties of Ambanc set
forth in this Agreement shall be assessed as of the date of this Agreement and
as of the Effective Time with the same effect as though all such representations
and warranties had been made on and as of the Effective Time (provided that
representations and warranties which are confined to a specified date shall
speak only as of such date). The representations and warranties of Ambanc set
forth in Section 5.3 of this Agreement shall be true and correct (except for
inaccuracies which are de minimis in amount). The representations and warranties
of Ambanc set forth in Sections 5.18, 5.19, 5.20, and 5.21 of this Agreement
shall be true and correct in all Material respects. There shall not exist
inaccuracies in the representations and warranties of Ambanc set forth in this
Agreement (including the representations and warranties set forth in Sections
5.3, 5.18, 5.19, 5.20, and 5.21) such that the aggregate effect of such
inaccuracies has, or is reasonably likely to have, a Material Adverse Effect on
Ambanc; provided that, for purposes of this sentence only, those representations
and warranties which are qualified by references to "material, "Material,"
"Material Adverse Effect," or variations thereof, or to the "Knowledge" of
Ambanc or to a matter being "known" by Ambanc shall be deemed not to include
such qualifications.
(b) PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and all of
the agreements and covenants of Ambanc to be performed and complied with
pursuant to this Agreement and the other agreements contemplated hereby prior to
the Effective Time shall have been duly performed and complied with in all
Material respects.
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(c) CERTIFICATES. Ambanc shall have delivered to UPC (i) a
certificate, dated as of the Effective Time and signed on its behalf by its duly
authorized officers, to the effect that the conditions of its obligations set
forth in Section 9.2(a) and 9.2(b) of this Agreement have been satisfied and
(ii) certified copies of resolutions duly adopted by Ambanc's Board of Directors
and stockholders evidencing the taking of all corporate action necessary to
authorize the execution, delivery, and performance of this Agreement and the
Plan of Merger, and the consummation of the transactions contemplated hereby and
thereby, all in such reasonable detail as UPC and its counsel shall request.
(d) AFFILIATE AGREEMENTS. UPC shall have received from each
affiliate of Ambanc the affiliates agreement referred to in Section 8.12 of this
Agreement, to the extent necessary to assure in the reasonable judgment of UPC
that the transactions contemplated hereby will qualify for pooling-of-interests
accounting treatment.
9.3 CONDITIONS TO OBLIGATIONS OF AMBANC. The obligations of Ambanc to
perform this Agreement and the Plan of Merger and consummate the Merger and the
other transactions contemplated hereby are subject to the satisfaction of the
following conditions, unless waived by Ambanc pursuant to Section 11.6(b) of
this Agreement:
(a) REPRESENTATIONS AND WARRANTIES. For purposes of this
Section 9.3(a), the accuracy of the representations and warranties of UPC set
forth in this Agreement shall be assessed as of the date of this Agreement and
as of the Effective Time with the same effect as though all such representations
and warranties had been made on and as of the Effective Time (provided that
representations and warranties which are confined to a specified date shall
speak only as of such date). The representations and warranties of UPC set forth
in Section 6.3 of this Agreement shall be true and correct (except for
inaccuracies which are de minimis in amount). The representations and warranties
of UPC set forth in Section 6.16 of this Agreement shall be true and correct in
all Material respects. There shall not exist inaccuracies in the representations
and warranties of UPC set forth in this Agreement (including the representations
and warranties set forth in Sections 6.3 and 6.16) such that the aggregate
effect of such inaccuracies has, or is reasonably likely to have, a Material
Adverse Effect on UPC; provided that, for purposes of this sentence only, those
representations and warranties which are qualified by references to "material,"
"Material," "Material Adverse Effect," or variations thereof, or to the
"Knowledge" of UPC or to a matter being "known" by UPC shall be deemed not to
include such qualifications.
(b) PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and all of
the agreements and covenants of UPC to be performed and complied with pursuant
to this Agreement and the other agreements contemplated hereby prior to the
Effective Time shall have been duly performed and complied with in all Material
respects.
(c) CERTIFICATES. UPC shall have delivered to Ambanc (i) a
certificate, dated as of the Effective Time and signed on its behalf by its duly
authorized officers, to the effect that the conditions of its obligations set
forth in Section 9.3(a) and 9.3(b) of this Agreement have been satisfied and
(ii) certified copies of resolutions duly adopted by UPC's Board of Directors
and stockholders evidencing the taking of all corporate action necessary to
authorize the execution, delivery, and performance of this Agreement, the UPC
Charter Amendment, and
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the consummation of the transactions contemplated hereby, all in such reasonable
detail as Ambanc and its counsel shall request.
(d) FAIRNESS OPINION. Ambanc shall have received an opinion
from XxXxxxxx & Company Securities, Inc., to the effect that the Merger is fair
to shareholders of Ambanc from a financial point of view dated the date of the
Proxy Statement.
ARTICLE 10
TERMINATION
10.1 TERMINATION. Notwithstanding any other provision of this Agreement
and the Plan of Merger, and notwithstanding the approval of this Agreement by
the stockholders of Ambanc or UPC, this Agreement may be terminated and the
Merger abandoned at any time prior to the Effective Time:
(a) By mutual consent of the Board of Directors of UPC and the
Board of Directors of Ambanc; or
(b) By the Board of Directors of either Party (provided that
the terminating Party is not then in breach of any representation or warranty
contained in this Agreement under the applicable standard set forth in Section
9.2(a) of this Agreement in the case of Ambanc and Section 9.3(a) of this
Agreement in the case of UPC or in Material breach of any covenant or other
agreement contained in this Agreement) in the event of an inaccuracy of any
representation or warranty of the other Party contained in this Agreement which
cannot be or has not been cured within 30 days after the giving of written
notice to the breaching Party of such inaccuracy and which inaccuracy would
provide the terminating Party the ability to refuse to consummate the Merger
under the applicable standard set forth in Section 9.2(a) of this Agreement in
the case of Ambanc and Section 9.3(a) of this Agreement in the case of UPC; or
(c) By the Board of Directors of either Party (provided that
the terminating Party is not then in breach of any representation or warranty
contained in this Agreement under the applicable standard set forth in Section
9.2(a) of this Agreement in the case of Ambanc and Section 9.3(a) in the case of
UPC) in the event of a Material breach by the other Party of any covenant or
agreement contained in this Agreement which cannot be or has not been cured
within 30 days after the giving of written notice to the breaching Party of such
breach; or
(d) By the Board of Directors of either Party in the event (i)
any Consent of any Regulatory Authority required for consummation of the Merger
and the other transactions contemplated hereby shall have been denied by final
nonappealable action of such authority or if any action taken by such authority
is not appealed within the time limit for appeal, (ii) the stockholders of
Ambanc fail to vote their approval of the matters submitted for the approval by
such stockholders at the Stockholders' Meeting where the transactions were
presented to such stockholders for approval and voted upon, or (iii) the
stockholders of UPC fail to vote their approval of the UPC Charter Amendment at
the 1998 annual meeting of stockholders of UPC; or
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(e) By the Board of Directors of either Party in the event
that the Merger shall not have been consummated by December 31, 1998, if the
failure to consummate the transactions contemplated hereby on or before such
date is not caused by any breach of this Agreement by the Party electing to
terminate pursuant to this Section 10.1(e); or
(f) By the Board of Directors of either Party (provided that
the terminating Party is not then in breach of any representation or warranty
contained in this Agreement under the applicable standard set forth in Section
9.2(a) of this Agreement in the case of Ambanc and Section 9.3(a) of this
Agreement in the case of UPC or in Material breach of any covenant or other
agreement contained in this Agreement) in the event that any of the conditions
precedent to the obligations of such Party to consummate the Merger cannot be
satisfied or fulfilled by the date specified in Section 10.1(e) of this
Agreement; or
(g) By the Board of Directors of Ambanc upon written notice to
UPC at any time during the ten-day period commencing two days after the
Determination Date, if both of the following conditions are satisfied:
(1) the Average Closing Price shall be less
than the product of (i) 0.80 and (ii) the Starting Price; and
(2) (i) the quotient obtained by dividing
the Average Closing Price by the Starting Price (such number
being referred to herein as the "UPC Ratio") shall be less
than (ii) the quotient obtained by dividing the Index Price on
the Determination Date by the Index Price on the Starting Date
and subtracting 0.15 from the quotient in this clause (2)(ii)
(such number being referred to herein as the "Index Ratio");
subject, however, to the following three sentences. If Ambanc
refuses to consummate the Merger pursuant to this Section
10.1(g), it shall give prompt written notice thereof to UPC;
provided, that such notice of election to terminate may be
withdrawn at any time within the aforementioned ten-day
period. During the five-day period commencing with its receipt
of such notice, UPC shall have the option to elect to increase
the Exchange Ratio to equal the lesser of (i) the quotient
obtained by dividing (1) the product of 0.80, the Starting
Price, and the Exchange Ratio (as then in effect) by (2) the
Average Closing Price, and (ii) the quotient obtained by
dividing (1) the product of the Index Ratio and the Exchange
Ratio (as then in effect) by (2) the UPC Ratio. If UPC makes
an election contemplated by the preceding sentence, within
such five-day period, it shall give prompt written notice to
Ambanc of such election and the revised Exchange Ratio,
whereupon no termination shall have occurred pursuant to this
Section 10.1(g) and this Agreement shall remain in effect in
accordance with its terms (except as the Exchange Ratio shall
have been so modified), and any references in this Agreement
to "Exchange Ratio" shall thereafter be deemed to refer to the
Exchange Ratio as adjusted pursuant to this Section 10.1(g).
For purposes of this Section 10.1(g), the following terms
shall have the meanings indicated:
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"Average Closing Price" shall mean the average of the daily
last sales prices of UPC Common Stock as reported on the NYSE (as reported by
The Wall Street Journal or, if not reported thereby, another authoritative
source as chosen by UPC) for the 20 consecutive full trading days in which such
shares are traded on the NYSE ending at the close of trading on the
Determination Date.
"Determination Date" shall mean the later of the date (i) of
the Stockholders' Meeting and (ii) on which the Consent of the Board of
Governors of the Federal Reserve System shall be received (without regard to any
requisite waiting period thereof).
"Index Group" shall mean the 14 bank holding companies listed
below, the common stocks of all of which shall be publicly traded and as to
which there shall not have been, since the Starting Date and before the
Determination Date, any public announcement of a proposal for such company to be
acquired or for such company to acquire another company or companies in
transactions with a value exceeding 25% of the acquiror's market capitalization
as of the Starting Date. In the event that any such company or companies are
removed from the Index Group as a result of any of the events described in the
preceding sentence, the weights (which shall be determined based upon the number
of outstanding shares of common stock) shall be redistributed proportionately
for purposes of determining the Index Price. The 14 bank holding companies and
the weights attributed to them are as follows:
Bank Holding Companies Weighting
-------------------------------------------------------------------------- ---------
AmSouth Bancorporation 5.50%
BB&T Corporation 9.15
Crestar Financial Corporation 7.54
First American Corporation 3.99
First Security Corporation 7.92
First Tennessee National Corporation 4.38
Firstar Corporation 9.90
Huntington Bancshares, Inc. 13.08
Xxxxxxxx & Ilsley Corporation 6.93
Mercantile Bancorporation, Inc. 8.91
National Commerce Bancorp 3.34
Old Kent Financial Corporation 3.22
Regions Financial Corporation 9.31
SouthTrust Corporation 6.82
------
Total 100.00%
======
"Index Price" on a given date shall mean the weighted average
(weighted in accordance with the factors listed above) of the closing prices of
the companies composing the Index Group.
"Starting Date" shall mean the fourth full trading day after
the announcement by press release of the Merger.
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"Starting Price" shall mean the closing price per share of UPC
Common Stock as reported on the NYSE (as reported by The Wall Street Journal or,
if not reported thereby, another authoritative source as chosen by UPC) on the
Starting Date.
If UPC or any company belonging to the Index Group declares or
effects a stock dividend, reclassification, recapitalization, split-up,
combination, exchange of shares, or similar transaction between the date of this
Agreement and the Determination Date, the prices for the common stock of such
company or UPC shall be appropriately adjusted for the purposes of applying this
Section 10.1(g).
10.2 EFFECT OF TERMINATION. In the event of the termination and
abandonment of this Agreement pursuant to Section 10.1 of this Agreement, this
Agreement, the Plan of Merger, and the Supplemental Letter shall become void and
have no effect, except that (i) the provisions of this Section 10.2 and Article
11 and Section 8.6(b) of this Agreement shall survive any such termination and
abandonment and (ii) a termination pursuant to Sections 10.1(b), 10.1(c), or
10.1(f) of this Agreement shall not relieve the breaching Party from Liability
for an uncured willful breach of a representation, warranty, covenant, or
agreement giving rise to such termination. The Stock Option Agreement shall be
governed by its own terms.
10.3 NON-SURVIVAL OF REPRESENTATIONS AND COVENANTS. The respective
representations, warranties, obligations, covenants, and agreements of the
Parties shall not survive the Effective Time except this Section 10.3 and
Articles 2, 3, 4, and 11 and Sections 8.12 and 8.14 of this Agreement and the
Supplemental Letter.
ARTICLE 11
MISCELLANEOUS
11.1 DEFINITIONS.
(a) Except as otherwise provided herein, the capitalized terms
set forth below shall have the following meanings:
"Acquisition Proposal" with respect to a Party shall mean any
tender offer or exchange offer or any proposal for a merger, acquisition of all
of the stock or Assets of, or other business combination involving such Party or
any of its Subsidiaries or the acquisition of a substantial equity interest in,
or a substantial portion of the Assets of, such Party or any of its
Subsidiaries.
"Affiliate" of a Person shall mean any other Person directly,
or indirectly through one or more intermediaries, controlling, controlled by or
under common control with such Person.
"Agreement" shall mean this Agreement and Plan of
Reorganization, including the Exhibits hereto (except the Stock Option
Agreement) delivered pursuant hereto and incorporated herein by reference.
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"Ambanc Capital Stock" shall mean, collectively, Ambanc Common
Stock and Ambanc Preferred Stock.
"Ambanc Preferred Stock" shall mean the $10 par value
preferred stock of Ambanc.
"Ambanc Common Stock" shall mean the $10 par value common
stock of Ambanc.
"Ambanc Companies" shall mean, collectively, Ambanc and all
Ambanc Subsidiaries.
"Ambanc Disclosure Memorandum" shall mean the written
information entitled "Ambanc Disclosure Memorandum" delivered prior to the
execution of this Agreement to UPC describing in reasonable detail the matters
contained therein and, with respect to each disclosure made therein,
specifically referencing each Section or subsection of this Agreement under
which such disclosure is being made.
"Ambanc Financial Statements" shall mean (i) the consolidated
statements of condition (including related notes and schedules, if any) of
Ambanc as of December 31, 1997, 1996 and 1995, and the related statements of
income, changes in stockholders' equity, and cash flows (including related notes
and schedules, if any) for each of the three years ended December 31, 1997, 1996
and 1995, as filed by Ambanc in SEC Documents and (ii) the consolidated
statements of condition of Ambanc (including related notes and schedules, if
any) and related statements of income, changes in stockholders' equity, and cash
flows (including related notes and schedules, if any) included in SEC Documents
filed with respect to periods ended subsequent to December 31, 1997.
"Ambanc Stock Plans" shall mean the existing stock option and
other stock-based compensation plans of Ambanc.
"Ambanc Subsidiaries" shall mean the Subsidiaries of Ambanc,
which shall include the Ambanc Subsidiaries described in Section 5.4 of this
Agreement and any corporation, bank, savings association, or other organization
acquired as a Subsidiary of Ambanc in the future and owned by Ambanc at the
Effective Time.
"Articles of Merger" shall mean the Articles of Merger to be
executed by UPHC and filed with the Secretary of State of the State of Tennessee
and the Secretary of State of the State of Indiana relating to the Merger as
contemplated by Sections 1.1 and 1.3 of this Agreement.
"Assets" of a Person shall mean all of the assets, properties,
businesses, and rights of such Person of every kind, nature, character, and
description, whether real, personal, or mixed, tangible or intangible, accrued
or contingent, or otherwise relating to or utilized in such Person's business,
directly or indirectly, in whole or in part, whether or not carried on the books
and records of such Person, and whether or not owned in the name of such Person
or any Affiliate of such Person and wherever located.
"BHC Act" shall mean the federal Bank Holding Company Act of
1956, as amended.
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"Confidentiality Agreements" shall mean those certain
Confidentiality Agreements, entered into prior to the date of this Agreement,
between Ambanc and UPC.
"Consent" shall mean any consent, approval, authorization,
clearance, exemption, waiver, or similar affirmation by any Person pursuant to
any Contract, Law, Order, or Permit.
"Contract" shall mean any written or oral agreement,
arrangement, authorization, commitment, contract, indenture, instrument, lease,
obligation, plan, practice, restriction, understanding, or undertaking of any
kind or character, or other document to which any Person is a party or that is
binding on any Person or its capital stock, Assets, or business.
"Default" shall mean (i) any breach or violation of or default
under any Contract, Order, or Permit, (ii) any occurrence of any event that with
the passage of time or the giving of notice or both would constitute a breach or
violation of or default under any Contract, Order, or Permit, or (iii) any
occurrence of any event that with or without the passage of time or the giving
of notice would give rise to a right to terminate or revoke, change the current
terms of, or renegotiate, or to accelerate, increase, or impose any Liability
under, any Contract, Order, or Permit, where, in any such event, such Default is
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on a Party.
"Environmental Laws" shall mean all Laws relating to pollution
or protection of human health or the environment (including ambient air, surface
water, ground water, land surface, or subsurface strata) and which are
administered, interpreted, or enforced by the United States Environmental
Protection Agency and state and local agencies with jurisdiction over, and
including common law in respect of, pollution or protection of the environment,
including the Comprehensive Environmental Response Compensation and Liability
Act, as amended, 42 U.S.C. 9601 et seq. ("CERCLA"), the Resource Conservation
and Recovery Act, as amended, 42 U.S.C. 6901 et seq. ("RCRA"), and other Laws
relating to emissions, discharges, releases, or threatened releases of any
Hazardous Material, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling of any
Hazardous Material.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
"Exhibits" 1 through 3, inclusive, shall mean the Exhibits so
marked, copies of which are attached to this Agreement. Such Exhibits are hereby
incorporated by reference herein and made a part hereof, and may be referred to
in this Agreement and any other related instrument or document without being
attached hereto.
"GAAP" shall mean generally accepted accounting principles,
consistently applied during the periods involved.
"Hazardous Material" shall mean (i) any hazardous substance,
hazardous material, hazardous waste, regulated substance, or toxic substance (as
those terms are defined by any applicable Environmental Laws) and (ii) any
chemicals, pollutants, contaminants, petroleum, petroleum products, or oil (and
specifically shall include asbestos requiring abatement, removal, or
encapsulation pursuant to the requirements of governmental authorities and any
polychlori-nated biphenyls).
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"XXX Xxx" shall mean Section 7A of the Xxxxxxx Act, as added
by Title II of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended, and the rules and regulations promulgated thereunder.
"IBCL" shall mean the Indiana Business Corporation Law.
"Internal Revenue Code" shall mean the Internal Revenue Code
of 1986, as amended.
"Proxy Statement" shall mean the proxy statement used by
Ambanc to solicit the approval of its stockholders of the transactions
contemplated by this Agreement, which shall include the prospectus of UPC
relating to the issuance of the UPC Common Stock to holders of Ambanc Common
Stock.
"Knowledge" as used with respect to a Person (including
references to such Person being aware of a particular matter) shall mean the
personal knowledge of the chairman, president, chief financial officer, chief
accounting officer, chief credit officer, general counsel, or any executive vice
president of such Person.
"Law" shall mean any code, law, ordinance, regulation,
reporting or licensing requirement, rule, or statute applicable to a Person or
its Assets, Liabilities, or business, including those promulgated, interpreted,
or enforced by any Regulatory Authority.
"Liability" shall mean any direct or indirect, primary or
secondary, liability, indebtedness, obligation, penalty, cost, or expense
(including costs of investigation, collection, and defense), claim, deficiency,
guaranty, or endorsement of or by any Person (other than endorsements of notes,
bills, checks, and drafts presented for collection or deposit in the ordinary
course of business) of any type, whether accrued, absolute or contingent,
liquidated or unliquidated, matured or unmatured, or otherwise.
"Lien" shall mean any conditional sale agreement, default of
title, easement, encroachment, encumbrance, hypothecation, infringement, lien,
mortgage, pledge, reservation, restriction, security interest, title retention,
or other security arrangement, or any adverse right or interest, charge, or
claim of any nature whatsoever of, on, or with respect to any property or
property interest, other than (i) Liens for property Taxes not yet due and
payable and (ii) for depository institution Subsidiaries of a Party, pledges to
secure deposits, and other Liens incurred in the ordinary course of the banking
business.
"Litigation" shall mean any action, arbitration, cause of
action, claim, complaint, criminal prosecution, demand letter, governmental or
other examination or investigation, hearing, inquiry, administrative or other
proceeding, or notice (written or oral) by any Person alleging potential
Liability or requesting information relating to or affecting a Party, its
business, its Assets (including Contracts related to it), or the transactions
contemplated by this Agreement, but shall not include regular, periodic
examinations of depository institutions and their Affiliates by Regulatory
Authorities.
"Loan Property" shall mean any property owned, leased, or
operated by the Party in question or by any of its Subsidiaries or in which such
Party or Subsidiary holds a security or
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other interest (including an interest in a fiduciary capacity), and, where
required by the context, includes the owner or operator of such property, but
only with respect to such property.
"Material" for purposes of this Agreement shall be determined
in light of the facts and circumstances of the matter in question; provided that
any specific monetary amount stated in this Agreement shall determine
materiality in that instance.
"Material Adverse Effect" on a Party shall mean an event,
change, or occurrence which, individually or together with any other event,
change, or occurrence, has a Material adverse impact on (i) the financial
condition, results of operations, or business of such Party and its
Subsidiaries, taken as a whole or (ii) the ability of such Party to perform its
obligations under this Agreement or to consummate the Merger or the other
transactions contemplated by this Agreement, provided that "Material Adverse
Effect" shall not be deemed to include the impact of (a) changes in banking and
similar Laws of general applicability or interpretations thereof by courts or
governmental authorities, (b) changes in GAAP or regulatory accounting
principles generally applicable to banks and their holding companies, (c)
actions and omissions of a Party (or any of its Subsidiaries) taken with the
prior informed consent of the other Party in contemplation of the transactions
contemplated hereby, and (d) the Merger and compliance with the provisions of
this Agreement (including the expense associated with the vesting of benefits
under the various employee benefit plans of Ambanc as a result of the Merger
constituting a change of control) on the operating performance of the Parties.
"NYSE" shall mean the New York Stock Exchange, Inc.
"1933 Act" shall mean the Securities Act of 1933, as amended.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Order" shall mean any administrative decision or award,
decree, injunction, judgment, order, quasi-judicial decision or award, ruling,
or writ of any federal, state, local, or foreign or other court, arbitrator,
mediator, tribunal, administrative agency, or Regulatory Authority.
"Participation Facility" shall mean any facility or property
in which the Party in question or any of its Subsidiaries participates in the
management (including, but not limited to, participating in a fiduciary
capacity) and, where required by the context, said term means the owner or
operator of such facility or property, but only with respect to such facility or
property.
"Party" shall mean either Ambanc or UPC, and "Parties" shall
mean both Ambanc and UPC.
"Permit" shall mean any federal, state, local, and foreign
governmental approval, authorization, certificate, easement, filing, franchise,
license, notice, permit, or right to which any Person is a party or that is or
may be binding upon or inure to the benefit of any Person or its securities,
Assets, or business.
"Person" shall mean a natural person or any legal, commercial,
or governmental entity, such as, but not limited to, a corporation, general
partnership, joint venture, limited partner-
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ship, limited liability company, trust, business association, group acting in
concert, or any person acting in a representative capacity.
"Plan of Merger" shall mean the plan of merger providing for
the Merger, in substantially the form of Exhibit 2.
"Registration Statement" shall mean the Registration Statement
on Form S-4, or other appropriate form, including any pre-effective or
post-effective amendments or supplements thereto, filed with the SEC by UPC
under the 1933 Act with respect to the shares of UPC Common Stock to be issued
to the stockholders of Ambanc in connection with the transactions contemplated
by this Agreement.
"Regulatory Authorities" shall mean, collectively, the Federal
Trade Commission, the United States Department of Justice, the Board of the
Governors of the Federal Reserve System, the Office of the Comptroller of the
Currency, the Federal Deposit Insurance Corporation, the Office of Thrift
Supervision, all state regulatory agencies having jurisdiction over the Parties
and their respective Subsidiaries, the NASD, the NYSE and the SEC.
"Representative" shall mean any investment banker, financial
advisor, attorney, accountant, consultant, or other representative of a Person.
"Rights" shall mean all arrangements, calls, commitments,
Contracts, options, rights to subscribe to, scrip, understandings, warrants, or
other binding obligations of any character whatsoever relating to, or securities
or rights convertible into or exchangeable for, shares of the capital stock of a
Person or by which a Person is or may be bound to issue additional shares of its
capital stock or other Rights.
"SEC" shall mean the United States Securities and Exchange
Commission.
"SEC Documents" shall mean all forms, proxy statements,
registration statements, reports, schedules, and other documents filed, or
required to be filed, by a Party or any of its Subsidiaries with any Regulatory
Authority pursuant to the Securities Laws.
"Securities Laws" shall mean the 1933 Act, the 1934 Act, the
Investment Company Act of 1940, as amended, the Investment Advisors Act of 1940,
as amended, the Trust Indenture Act of 1939, as amended, and the rules and
regulations of any Regulatory Authority promulgated thereunder.
"Stock Option Agreement" shall mean the stock option agreement
by and between Ambanc and UPC, in substantially the form of Exhibit 1.
"Stockholders' Meeting" shall mean the meeting of the
stockholders of Ambanc to be held pursuant to Section 8.1 of this Agreement,
including any adjournment or adjournments thereof.
"Subsidiaries" shall mean all those corporations, banks,
associations, or other entities of which the entity in question owns or controls
50% or more of the outstanding equity securities either directly or through an
unbroken chain of entities as to each of which 50% or
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more of the outstanding equity securities is owned directly or indirectly by its
parent; provided, there shall not be included any such entity acquired through
foreclosure or any such entity the equity securities of which are owned or
controlled in a fiduciary capacity.
"Supplemental Letter" shall mean the supplemental letter of
even date herewith between the Parties relating to certain understandings and
agreements in addition to those included in this Agreement.
"Surviving Corporation" shall mean UPHC as the surviving
corporation resulting from the Merger.
"Tax" or "Taxes" shall mean all federal, state, local, and
foreign taxes, charges, fees, levies, imposts, duties, or other assessments,
including income, gross receipts, excise, employment, sales, use, transfer,
license, payroll, franchise, severance, stamp, occupation, windfall profits,
environmental, federal highway use, commercial rent, customs duties, capital
stock, paid-up capital, profits, withholding, Social Security, single business
and unemployment, disability, real property, personal property, registration, ad
valorem, value added, alternative or add-on minimum, estimated, or other tax of
any kind whatsoever, imposed or required to be withheld by the United States or
any state, local, or foreign government or subdivision or agency thereof,
including any interest, penalties, or additions thereto.
"Taxable Period" shall mean any period prescribed by any
governmental authority, including the United States or any state, local, or
foreign government or subdivision or agency thereof for which a Tax Return is
required to be filed or Tax is required to be paid.
"Tax Return" shall mean any report, return, information
return, or other information required to be supplied to a taxing authority in
connection with Taxes, including any return of an affiliated or combined or
unitary group that includes a Party or its Subsidiaries.
"TBCA" shall mean the Tennessee Business Corporation Act.
"UPC Capital Stock" shall mean, collectively, the UPC Common
Stock, the UPC Preferred Stock and any other class or series of capital stock of
UPC.
"UPC Charter Amendment" shall mean the proposal to amend UPC's
Restated Charter to increase the number of authorized shares of UPC Common Stock
by not less than 100,000,000, which may be submitted to the stockholders of UPC
for consideration and approval at the 1998 annual meeting of stockholders of
UPC.
"UPC Common Stock" shall mean the $5.00 par value common stock
of UPC.
"UPC Companies" shall mean, collectively, UPC and all UPC
Subsidiaries.
"UPC Financial Statements" shall mean (i) the consolidated
balance sheets (including related notes and schedules, if any) of UPC as of
December 31, 1997 and 1996, and the related statements of earnings, changes in
stockholders' equity, and cash flows (including related notes and schedules, if
any) for each of the three years ended December 31, 1997, 1996 and 1995, as
filed by UPC in SEC Documents and (ii) the consolidated balance sheets of XXX
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(including related notes and schedules, if any) and related statements of
earnings, changes in stockholders' equity, and cash flows (including related
notes and schedules, if any) included in SEC Documents filed with respect to
periods ended subsequent to December 31, 1997.
"UPC Preferred Stock" shall mean the no par value preferred
stock of UPC and shall include the (i) Series A Preferred Stock and (ii) Series
E 8% Cumulative, Convertible Preferred Stock, of UPC ("UPC Series E Preferred
Stock").
"UPC Rights" shall mean the preferred stock purchase rights
issued pursuant to the UPC Rights Agreement.
"UPC Rights Agreement" shall mean that certain Rights
Agreement, dated January 19, 1989, between UPC and Union Planters Bank, National
Association, as Rights Agent.
"UPC Subsidiaries" shall mean the Subsidiaries of UPC and any
corporation, bank, or other organization acquired as a Subsidiary of UPC in the
future and owned by UPC at the Effective Time.
"UPHC" shall mean the wholly-owned subsidiary of UPC organized
under the Laws of the State of Tennessee.
"UPHC Common Stock" shall mean the $1.00 par value common
stock of UPHC.
(b) The terms set forth below shall have the meanings ascribed
thereto in the referenced sections:
Ambanc Benefit Plans Section 5.13(a)
Average Closing Price Section 10.1(g)
Ambanc Contracts Section 5.14
Ambanc ERISA Affiliate Section 5.13(e)
Ambanc ERISA Plan Section 5.13(a)
Ambanc Rights Section 3.5(a)
Ambanc Pension Plan Section 5.13(a)
Ambanc SEC Reports Section 5.5(a)
Closing Section 1.2
Determination Date Section 10.1(g)
Effective Time Section 1.3
Exchange Agent Section 4.1
Exchange Ratio Section 3.1(c)
Indemnified Party Section 8.14
Index Group Section 10.1(g)
Index Price Section 10.1(g)
Index Ratio Section 10.1(g)
Merger Section 1.1
Starting Date Section 10.1(g)
Starting Price Section 10.1(g)
Takeover Laws Section 5.19
Tax Opinion Section 9.1(g)
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UPC ERISA Affiliate Section 6.17
UPC Ratio Section 10.1(g)
UPC SEC Reports Section 6.5(a)
(c) Any singular term in this Agreement shall be deemed to
include the plural, and any plural term the singular. Whenever the words
"include," "includes," or "including" are used in this Agreement, they shall be
deemed followed by the words "without limitation."
11.2 EXPENSES.
(a) Except as otherwise provided in this Section 11.2, each of
the Parties shall bear and pay all direct costs and expenses incurred by it or
on its behalf in connection with the transactions contemplated hereunder,
including filing, registration, and application fees, printing fees, and fees
and expenses of its own financial or other consultants, investment bankers,
accountants, and counsel, except that each of the Parties shall bear and pay
one-half of the printing costs incurred in connection with the printing of the
Registration Statement and the Proxy Statement.
(b) Nothing contained in this Section 11.2 shall constitute or
shall be deemed to constitute liquidated damages for the willful breach by a
Party of the terms of this Agreement or otherwise limit the rights of the
nonbreaching Party.
11.3 BROKERS AND FINDERS. Except for XxXxxxxx & Company Securities,
Inc. as to Ambanc and Xxxxxx, Xxxxxxxx & Company, Inc. as to UPC, each of the
Parties represents and warrants that neither it nor any of its officers,
directors, employees, or Affiliates has employed any broker or finder or
incurred any Liability for any financial advisory fees, investment bankers'
fees, brokerage fees, commissions, or finders' fees in connection with this
Agreement or the transactions contemplated hereby. In the event of a claim by
any broker or finder based upon his, her, or its representing or being retained
by or allegedly representing or being retained by Ambanc or UPC, each of Ambanc
and UPC, as the case may be, agrees to indemnify and hold the other Party
harmless of and from any Liability in respect of any such claim.
11.4 ENTIRE AGREEMENT. Except as otherwise expressly provided herein,
this Agreement (including the documents and instruments referred to herein)
constitutes the entire agreement between the Parties with respect to the
transactions contemplated hereunder and supersedes all prior arrangements or
understandings with respect thereto, written or oral (including any provision of
the Confidentiality Agreements which would act to preclude UPC (or any Holder as
defined in the Stock Option Agreement from exercising its rights under the Stock
Option Agreement) to the extent that the Stock Option Agreement is in force and
effect, but excluding the Supplemental Letter). Nothing in this Agreement
expressed or implied, is intended to confer upon any Person, other than the
Parties or their respective successors, any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, other than as provided in
Sections 8.12 and 8.14 of this Agreement.
11.5 AMENDMENTS. To the extent permitted by Law, this Agreement may be
amended by a subsequent writing signed by each of the Parties upon the approval
of the Boards of Directors of each of the Parties, whether before or after
stockholder approval of this Agreement has been obtained; provided, that the
provisions of this Agreement relating to the manner or
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basis in which shares of Ambanc Common Stock will be exchanged for UPC Common
Stock shall not be amended after the Stockholders' Meeting without the requisite
approval of the holders of the issued and outstanding shares of UPC Common Stock
and Ambanc Common Stock, as the case may be, entitled to vote thereon.
11.6 WAIVERS.
(a) Prior to or at the Effective Time, UPC, acting through its
Board of Directors, chief executive officer, chief financial officer, or other
authorized officer, shall have the right to waive any Default in the performance
of any term of this Agreement by Ambanc, to waive or extend the time for the
compliance or fulfillment by Ambanc of any and all of its obligations under this
Agreement, and to waive any or all of the conditions precedent to the
obligations of UPC under this Agreement, except any condition which, if not
satisfied, would result in the violation of any Law. No such waiver shall be
effective unless in writing signed by a duly authorized officer of UPC.
(b) Prior to or at the Effective Time, Ambanc, acting through
its Board of Directors, chief executive officer, chief financial officer, or
other authorized officer, shall have the right to waive any Default in the
performance of any term of this Agreement by UPC, to waive or extend the time
for the compliance or fulfillment by UPC of any and all of its obligations under
this Agreement, and to waive any or all of the conditions precedent to the
obligations of Ambanc under this Agreement, except any condition which, if not
satisfied, would result in the violation of any Law. No such waiver shall be
effective unless in writing signed by a duly authorized officer of Ambanc.
(c) The failure of any Party at any time or times to require
performance of any provision hereof shall in no manner affect the right of such
Party at a later time to enforce the same or any other provision of this
Agreement. No waiver of any condition or of the breach of any term contained in
this Agreement in one or more instances shall be deemed to be or construed as a
further or continuing waiver of such condition or breach or a waiver of any
other condition or of the breach of any other term of this Agreement.
11.7 ASSIGNMENT. Except as expressly contemplated hereby, neither this
Agreement nor any of the rights, interests, or obligations hereunder shall be
assigned by any Party hereto (whether by operation of Law or otherwise) without
the prior written consent of the other Party. Subject to the preceding sentence,
this Agreement will be binding upon, inure to the benefit of, and be enforceable
by the Parties and their respective successors and assigns.
11.8 NOTICES. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if delivered by hand, by
facsimile transmission, by registered or certified mail, postage pre-paid, or by
courier or overnight carrier, to the persons at the addresses set forth below
(or at such other address as may be provided hereunder), and shall be deemed to
have been delivered as of the date so delivered:
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Ambanc: AMBANC CORP.
000 Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx 00000-0000
Telecopy Number: 000-000-0000
Attn: Xxxxxx X. Xxxxxx
Copy to Counsel: Leagre Xxxxxxxx & Xxxxxxx
0000 Xxxxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Telecopy Number: 317-846-7900
Attn: Xxxx X. Xxxxxx
UPC: UNION PLANTERS CORPORATION
0000 Xxxxxxxx Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Telecopy Number: (000) 000-0000
Attn: Xxxxxxx X. Xxxxx
President and
Chief Operating Officer
Copy to Counsel: UNION PLANTERS CORPORATION
0000 Xxxxxxxx Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Telecopy Number: (000) 000-0000
Attn: X. Xxxxx House, Jr.
XXXXX, XXXXXXX & XXXXX
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Telecopy Number: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxx
11.9 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the Laws of the State of Tennessee, without regard to any
applicable conflicts of Laws, except to the extent that the Laws of the State of
Indiana relate to the consummation of the Merger.
11.10 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
11.11 CAPTIONS. The captions contained in this Agreement are for
reference purposes only and are not part of this Agreement.
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11.12 INTERPRETATIONS. Neither this Agreement nor any uncertainty or
ambiguity herein shall be construed or resolved against any Party, whether under
any rule of construction or otherwise. No Party to this Agreement shall be
considered the draftsman. The Parties acknowledge and agree that this Agreement
has been reviewed, negotiated, and accepted by all Parties and their attorneys
and shall be construed and interpreted according to the ordinary meaning of the
words used so as fairly to accomplish the purposes and intentions of the
Parties.
11.13 ENFORCEMENT OF AGREEMENT. The Parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement was not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the Parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the United
States or any state having jurisdiction, this being in addition to any other
remedy to which they are entitled at law or in equity.
11.14 SEVERABILITY. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
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IN WITNESS WHEREOF, each of the Parties has caused this
Agreement to be executed on its behalf and its corporate seal to be hereunto
affixed and attested by officers thereunto as of the day and year first above
written.
ATTEST: AMBANC CORP.
By:/s/ Xxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------------- -----------------------------------
Xxxx X. Xxxxx, Secretary Xxxxxx X. Xxxxxx
Chairman, President, and
Chief Executive Officer
[CORPORATE SEAL]
ATTEST: UNION PLANTERS CORPORATION
By: /s/ X. Xxxxx House, Jr. By:/s/ Xxxxxxxx X. Xxxxxxx, Xx.
------------------------------- -----------------------------------
X. Xxxxx House, Jr. Xxxxxxxx X. Xxxxxxx, Xx.
Secretary Chairman and Chief Executive
Officer
[CORPORATE SEAL]
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Exhibit 1
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "Agreement") is made and
entered into as of March 31, 1998, by and between AMBANC CORP., an Indiana
corporation ("Issuer"), and UNION PLANTERS CORPORATION, a Tennessee corporation
("Grantee").
WHEREAS, Grantee and Issuer have entered into that certain
Agreement and Plan of Reorganization, dated as of March 31, 1998 (the "Merger
Agreement"), providing for, among other things, the merger of Issuer with and
into Union Planters Holding Corporation ("UPHC"), a wholly-owned subsidiary of
Grantee organized under the Laws of the State of Tennessee, with UPHC as the
surviving entity; and
WHEREAS, as a condition and inducement to Grantee's execution
of the Merger Agreement, Grantee has required that Issuer agree, and Issuer has
agreed, to grant Grantee the Option (as defined below);
NOW, THEREFORE, in consideration of the respective
representations, warranties, covenants and agreements set forth herein and in
the Merger Agreement, and intending to be legally bound hereby, Issuer and
Grantee agree as follows:
1. DEFINED TERMS. Capitalized terms which are used but not
defined herein shall have the meanings ascribed to such terms in the Merger
Agreement.
2. GRANT OF OPTION. Subject to the terms and conditions set forth
herein, Issuer hereby grants to Grantee an irrevocable option (the "Option") to
purchase up to 1,392,749 shares (as adjusted as set forth herein, the "Option
Shares," which shall include the Option Shares before and after any transfer of
such Option Shares) of common stock, $10.00 par value per share ("Issuer Common
Stock"), of Issuer at a purchase price per Option Share (subject to adjustment
as set forth herein, the "Purchase Price") equal to the first closing price per
share of Issuer Common Stock following public announcement of the execution of
the Merger Agreement as reported on the Nasdaq National Market; provided,
however, that in no event shall the number of shares of Issuer Common Stock for
which this Option is exercisable exceed the lesser of (i) 19.9% of the Issuer's
issued and outstanding shares of Issuer Common Stock without giving effect to
any shares subject to or issued pursuant to the Option and (ii) that minimum
number of shares of Issuer Common Stock which when aggregated with any other
shares of Issuer Common Stock beneficially owned by Grantee or any Affiliate
thereof would cause the provisions of any Takeover Laws of the IBCL to be
applicable to the Merger or the Option.
3. EXERCISE OF OPTION.
(a) Provided that (i) Grantee or Holder (as hereinafter
defined), as applicable, shall not be in material breach of its agreements or
covenants contained in this Agreement or the Merger Agreement, and (ii) no
preliminary or permanent injunction or other order against the delivery of
shares covered by the Option issued by any court of competent jurisdiction in
the United States shall be in effect, Holder may exercise the Option, in whole
or in part, at any time and from time to time following the occurrence of a
Purchase Event and prior to the termination
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of the Option. The Option shall terminate and be of no further force and effect
upon the earliest to occur of (A) the Effective Time, (B) termination of the
Merger Agreement in accordance with the terms thereof prior to the occurrence of
a Purchase Event or a Preliminary Purchase Event (other than a termination of
the Merger Agreement by Grantee pursuant to (i) Section 10.1(b) thereof (but
only if such termination was a result of a willful breach by Issuer) or (ii)
Section 10.1(c) thereof (each a "Default Termination")), (C) 18 months after a
Default Termination, and (D) 18 months after any termination of the Merger
Agreement following the occurrence of a Purchase Event or a Preliminary Purchase
Event. Any purchase of shares upon exercise of the Option shall be subject to
compliance with applicable law, including, without limitation, the Bank Holding
Company Act of 1956, as amended (the "BHC Act"). The term "Holder" shall mean
the holder or holders of the Option from time to time, and which initially is
the Grantee. The rights set forth in Section 8 shall terminate when the right to
exercise the Option terminates (other than as a result of a complete exercise of
the Option) as set forth herein.
(b) As used herein, a "Purchase Event" means any of the
following events subsequent to the date of this Agreement:
(i) without Grantee's prior written consent, Issuer
shall have authorized, recommended, publicly proposed or publicly
announced an intention to authorize, recommend or propose, or entered
into an agreement with any person (other than Grantee or any Subsidiary
of Grantee) to effect an Acquisition Transaction (as defined below). As
used herein, the term Acquisition Transaction shall mean (A) a merger,
consolidation or similar transaction involving Issuer or any of its
Subsidiaries (other than transactions solely between Issuer's
Subsidiaries and transactions involving Issuer or any Subsidiary in
which the voting securities of Issuer outstanding immediately prior
thereto continue to represent (by either remaining outstanding or being
converted into securities of the surviving entity or the parent
thereof) at least 75% of the combined voting power of the voting
securities of the Issuer or the surviving entity or the parent thereof
outstanding immediately after the consummation of the transaction), (B)
the disposition, by sale, lease, exchange or otherwise, of Assets of
Issuer or any of its Subsidiaries representing in either case 20% or
more of the consolidated assets of Issuer and its Subsidiaries, or (C)
the issuance, sale or other disposition of (including by way of merger,
consolidation, share exchange or any similar transaction) securities
representing 20% or more of the voting power of Issuer or any of its
Subsidiaries (any of the foregoing, an "Acquisition Transaction"); or
(ii) any person (other than Grantee or any Subsidiary
of Grantee) shall have acquired beneficial ownership (as such term is
defined in Rule 13d-3 promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), of or the right to acquire
beneficial ownership of, or any "group" (as such term is defined under
the Exchange Act), other than a group of which Grantee or any of its
Subsidiaries is a member, shall have been formed which beneficially
owns or has the right to acquire beneficial ownership of, 20% or more
of the then-outstanding shares of Issuer Common Stock.
(c) As used herein, a "Preliminary Purchase Event" means
any of the following events:
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(i) any person (other than Grantee or any Subsidiary
of Grantee) shall have commenced (as such term is defined in Rule 14d-2
under the Exchange Act), or shall have filed a registration statement
under the Securities Act of 1933, as amended (the "Securities Act")
with respect to, a tender offer or exchange offer to purchase any
shares of Issuer Common Stock such that, upon consummation of such
offer, such person would own or control 15% or more of the
then-outstanding shares of Issuer Common Stock (such an offer being
referred to herein as a "Tender Offer" or an "Exchange Offer,"
respectively); or
(ii) the holders of Issuer Common Stock shall not
have approved the Merger Agreement at the meeting of such stockholders
held for the purpose of voting on the Merger Agreement, such meeting
shall not have been held or shall have been canceled prior to
termination of the Merger Agreement, or Issuer's Board of Directors
shall have withdrawn or modified in a manner adverse to Grantee the
recommendation of Issuer's Board of Directors with respect to the
Merger Agreement, in each case after it shall have been publicly
announced that any person (other than Grantee or any Subsidiary of
Grantee) shall have (A) made a proposal to engage in an Acquisition
Transaction, (B) commenced a Tender Offer or filed a registration
statement under the Securities Act with respect to an Exchange Offer,
or (C) filed an application (or given a notice), whether in draft or
final form, under any federal or state statute or regulation (including
a notice filed under the HSR Act and an application or notice filed
under the BHC Act, the Bank Merger Act, or the Change in Bank Control
Act of 1978) seeking the Consent to an Acquisition Transaction from any
federal or state governmental or regulatory authority or agency.
As used in this Agreement, "person" shall have the
meaning specified in Sections 3(a)(9) and 13(d)(3) of the Exchange Act.
(d) In the event Holder wishes to exercise the Option, it
shall send to Issuer a written notice (the date of which being herein referred
to as the "Notice Date") specifying (i) the total number of Option Shares it
intends to purchase pursuant to such exercise and (ii) a place and date not
earlier than three business days nor later than 30 business days from the Notice
Date for the closing (the "Closing") of such purchase (the "Closing Date"). If
prior Consent of any governmental or regulatory agency or authority is required
in connection with such purchase, Issuer shall cooperate with Holder in the
filing of the required notice or application for such Consent and the obtaining
of such Consent and the Closing shall occur immediately following receipt of
such Consents (and expiration of any mandatory waiting periods).
4. PAYMENT AND DELIVERY OF CERTIFICATES.
(a) On each Closing Date, Holder shall (i) pay to Issuer,
in immediately available funds by wire transfer to a bank account designated by
Issuer, an amount equal to the Purchase Price multiplied by the number of Option
Shares to be purchased on such Closing Date, and (ii) present and surrender this
Agreement to the Issuer at the address of the Issuer specified in Section 13(f)
hereof.
(b) At each Closing, simultaneously with the delivery of
immediately available funds and surrender of this Agreement as provided in
Section 4(a), (i) Issuer shall deliver to
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Holder (A) a certificate or certificates representing the Option Shares to be
purchased at such Closing, which Option Shares shall be free and clear of all
liens, claims, charges and encumbrances of any kind whatsoever and subject to no
pre-emptive rights, and (B) if the Option is exercised in part only, an executed
new agreement with the same terms as this Agreement evidencing the right to
purchase the balance of the shares of Issuer Common Stock purchasable hereunder,
and (ii) Holder shall deliver to Issuer a letter agreeing that Holder shall not
offer to sell or otherwise dispose of such Option Shares in violation of
applicable federal and state law or of the provisions of this Agreement.
(c) In addition to any other legend that is required by
applicable law, certificates for the Option Shares delivered at each Closing
shall be endorsed with a restrictive legend which shall read substantially as
follows:
THE TRANSFER OF THE STOCK REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO
RESTRICTIONS ARISING UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
PURSUANT TO THE TERMS OF A STOCK OPTION AGREEMENT DATED AS OF MARCH 31,
1998. A COPY OF SUCH AGREEMENT WILL BE PROVIDED TO THE HOLDER HEREOF
WITHOUT CHARGE UPON RECEIPT BY THE ISSUER OF A WRITTEN REQUEST
THEREFOR.
It is understood and agreed that: (i) the references in the above legend to
resale restrictions of the Securities Act shall be removed by delivery of
substitute certificate(s) without such reference if Holder shall have delivered
to Issuer a copy of a letter from the staff of the SEC, or an opinion of counsel
in form and substance reasonably satisfactory to Issuer and its counsel, to the
effect that such legend is not required for purposes of the Securities Act; (ii)
the references in the above legend to the provisions of this Agreement shall be
removed by delivery of substitute certificate(s) without such reference if the
shares have been sold or transferred in compliance with the provisions of this
Agreement and under circumstances that do not require the retention of such
reference; and (iii) the legend shall be removed in its entirety if the
conditions in the preceding clauses (i) and (ii) are both satisfied.
5. REPRESENTATIONS AND WARRANTIES OF ISSUER. Issuer hereby
represents and warrants to Grantee as follows:
(a) Issuer has all requisite corporate power and
authority to enter into this Agreement and, subject to any approvals referred to
herein, to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary corporate action on the part
of Issuer. This Agreement has been duly executed and delivered by Issuer.
(b) Issuer has taken all necessary corporate action to
authorize and reserve and to permit it to issue, and, at all times from the date
hereof until the obligation to deliver Issuer Common Stock upon the exercise of
the Option terminates, will have reserved for issuance, upon exercise of the
Option, the number of shares of Issuer Common Stock necessary for Holder to
exercise the Option, and Issuer will take all necessary corporate action to
authorize and reserve for issuance all additional shares of Issuer Common Stock
or other securities which may be issued pursuant to Section 7 upon exercise of
the Option. The shares of Issuer Common Stock to be issued upon due exercise of
the Option, including all additional shares of Issuer Common
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Stock or other securities which may be issuable pursuant to Section 7, upon
issuance pursuant hereto, shall be duly and validly issued, fully paid, and
nonassessable, and shall be delivered free and clear of all liens, claims,
charges, and encumbrances of any kind or nature whatsoever, including any
preemptive rights of any stockholder of Issuer.
(c) Issuer has taken all action so that the entering into
of this Agreement and the consummation of the transactions contemplated by this
Agreement do not and will not result in the grant of any rights to any Person
under the Articles of Incorporation, Bylaws, or other governing instruments of
any Ambanc Company or restrict or impair the ability of UPC or any of its
Subsidiaries to vote, or otherwise to exercise the rights of a stockholder with
respect to, shares of any Ambanc Company that may be directly or indirectly
acquired or controlled by it. Sections 1 and 2 of Article X of the Restated
Articles of Incorporation of Issuer do not and will not apply to any of the
transactions contemplated by this Agreement.
(d) Issuer has taken all necessary action to exempt the
transactions contemplated by this Agreement from any applicable Takeover Laws.
6. REPRESENTATIONS AND WARRANTIES OF GRANTEE. Grantee hereby
represents and warrants to Issuer that:
(a) Grantee has all requisite corporate power and
authority to enter into this Agreement and, subject to any approvals or consents
referred to herein, to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Grantee. This Agreement has been duly executed
and delivered by Grantee.
(b) This Option is not being, and any Option Shares or
other securities acquired by Grantee upon exercise of the Option will not be,
acquired with a view to the public distribution thereof and will not be
transferred or otherwise disposed of except in a transaction registered or
exempt from registration under the Securities Laws.
7. ADJUSTMENT UPON CHANGES IN CAPITALIZATION, ETC.
(a) In the event of any change in Issuer Common Stock by
reason of a stock dividend, stock split, split-up, recapitalization,
combination, exchange of shares or similar transaction, the type and number of
shares or securities subject to the Option, and the Purchase Price therefor,
shall be adjusted appropriately, and proper provision shall be made in the
agreements governing such transaction, if any, so that Holder shall receive,
upon exercise of the Option, the number and class of shares or other securities
or property that Holder would have received in respect of Issuer Common Stock if
the Option had been exercised immediately prior to such event, or the record
date therefor, as applicable. If any additional shares of Issuer Common Stock
are issued after the date of this Agreement (other than pursuant to an event
described in the first sentence of this Section 7(a) or pursuant to this
Option), the number of shares of Issuer Common Stock subject to the Option shall
be adjusted so that, after such issuance, it, together with any shares of Issuer
Common Stock previously issued pursuant hereto, shall not exceed the lesser of
(i) 19.9% of the number of shares of Issuer Common Stock then issued and
outstanding, without giving effect to any shares subject to or issued pursuant
to the
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Option and (ii) that minimum number of shares of Issuer Common Stock which when
aggregated with any other shares of Issuer Common Stock beneficially owned by
Grantee or any Affiliate thereof would cause the provisions of any Takeover Laws
of the IBCL to be applicable to the Merger or the Option.
(b) In the event that Issuer shall enter in an agreement:
(i) to consolidate with or merge into any person, other than Grantee or one of
its Subsidiaries, and shall not be the continuing or surviving corporation of
such consolidation or merger; (ii) to permit any person, other than Grantee or
one of its Subsidiaries, to merge into Issuer and Issuer shall be the continuing
or surviving corporation, but, in connection with such merger, the then
outstanding shares of Issuer Common Stock shall be changed into or exchanged for
stock or other securities of Issuer or any other person or cash or any other
property or the outstanding shares of Issuer Common Stock immediately prior to
such merger shall after such merger represent less than 50% of the outstanding
shares and share equivalents of the merged company; or (iii) to sell or
otherwise transfer all or substantially all of its Assets to any person, other
than Grantee or one of its Subsidiaries, then, and in each such case, the
agreement governing such transaction shall make proper provisions so that the
Option shall, upon the consummation of any such transaction and upon the terms
and conditions set forth herein, be converted into, or exchanged for, an option
(the "Substitute Option"), at the election of Grantee, of either (x) the
Acquiring Corporation (as defined below) or (y) any person that controls the
Acquiring Corporation (in each case, such person being referred to as the
"Substitute Option Issuer").
(c) The Substitute Option shall have the same terms as
the Option, provided that, if the terms of the Substitute Option cannot, for
legal reasons, be the same as the Option, such terms shall be as similar as
possible and in no event less advantageous to Grantee. The Substitute Option
Issuer shall also enter into an agreement with the then-holder or holders of the
Substitute Option in substantially the same form as this Agreement, which shall
be applicable to the Substitute Option.
(d) The Substitute Option shall be exercisable for such
number of shares of the Substitute Common Stock (as hereinafter defined) as is
equal to the Assigned Value (as hereinafter defined) multiplied by the number of
shares of the Issuer Common Stock for which the Option was theretofore
exercisable, divided by the Average Price (as hereinafter defined). The exercise
price of the Substitute Option per share of the Substitute Common Stock (the
"Substitute Purchase Price") shall then be equal to the Purchase Price
multiplied by a fraction in which the numerator is the number of shares of the
Issuer Common Stock for which the Option was theretofore exercisable and the
denominator is the number of shares for which the Substitute Option is
exercisable.
(e) The following terms have the meanings indicated:
(i) "Acquiring Corporation" shall mean (x) the
continuing or surviving corporation of a consolidation or merger with
Issuer (if other than Issuer), (y) Issuer in a merger in which Issuer
is the continuing or surviving person, and (z) the transferee of all or
any substantial part of the Issuer's assets (or the assets of its
Subsidiaries).
(ii) "Substitute Common Stock" shall mean the common
stock issued by the Substitute Option Issuer upon exercise of the
Substitute Option.
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(iii) "Assigned Value" shall mean the highest of (x)
the price per share of the Issuer Common Stock at which a Tender Offer
or Exchange Offer therefor has been made by any person (other than
Grantee), (y) the price per share of the Issuer Common Stock to be paid
by any person (other than the Grantee) pursuant to an agreement with
Issuer, and (z) the highest last sale price per share of Issuer Common
Stock quoted on the Nasdaq National Market (or if Issuer Common Stock
is not quoted on such exchange, the highest bid price per share on any
day as quoted on the principal trading market or securities exchange on
which such shares are traded as reported by a recognized source chosen
by Grantee) within the six-month period immediately preceding the
agreement; provided, that in the event of a sale of less than all of
Issuer's assets, the Assigned Value shall be the sum of the price paid
in such sale for such assets and the current market value of the
remaining assets of Issuer as determined by a nationally recognized
investment banking firm selected by Grantee (or by a majority in
interest of the Grantees if there shall be more than one Grantee (a
"Grantee Majority")) and reasonably acceptable to Issuer, divided by
the number of shares of the Issuer Common Stock outstanding at the time
of such sale. In the event that an exchange offer is made for the
Issuer Common Stock or an agreement is entered into for a merger or
consolidation involving consideration other than cash, the value of the
securities or other property issuable or deliverable in exchange for
the Issuer Common Stock shall be determined by a nationally recognized
investment banking firm selected by Grantee and reasonably acceptable
to Issuer (or if applicable, Acquiring Corporation). (If there shall be
more than one Grantee, any such selection shall be made by a Grantee
Majority.)
(iv) "Average Price" shall mean the average closing
price of a share of the Substitute Common Stock for the one year
immediately preceding the consolidation, merger or sale in question,
but in no event higher than the last sale price of the shares of the
Substitute Common Stock on the day preceding such consolidation, merger
or sale; provided that if Issuer is the issuer of the Substitute
Option, the Average Price shall be computed with respect to a share of
common stock issued by Issuer, the person merging into Issuer or by any
company which controls or is controlled by such merger person, as
Grantee may elect.
(f) In no event pursuant to any of the foregoing
paragraphs shall the Substitute Option be exercisable for more than 19.9% of the
aggregate of the shares of the Substitute Common Stock outstanding prior to
exercise of the Substitute Option. In the event that the Substitute Option would
be exercisable for more than 19.9% of the aggregate of the shares of Substitute
Common Stock but for this clause (f), the Substitute Option Issuer shall make a
cash payment to Grantee equal to the excess of (i) the value of the Substitute
Option without giving effect to the limitation in this clause (f) over (ii) the
value of the Substitute Option after giving effect to the limitation in this
clause (f). This difference in value shall be determined by a nationally
recognized investment banking firm selected by Grantee (or a Grantee Majority)
and reasonably acceptable to the Acquiring Corporation.
(g) Issuer shall not enter into any transaction described
in subsection (b) of this Section 7 unless the Acquiring Corporation and any
person that controls the Acquiring Corporation assume in writing all the
obligations of Issuer hereunder and take all other actions that may be necessary
so that the provisions of this Section 7 are given full force and effect
(including, without limitation, any action that may be necessary so that the
shares of Substitute
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Common Stock are in no way distinguishable from or have lesser economic value
than other shares of common stock issued by the Substitute Option Issuer).
(h) The provisions of Sections 8, 9, 10, and 11 shall
apply, with appropriate adjustments, to any securities for which the Option
becomes exercisable pursuant to this Section 7 and, as applicable, references in
such sections to "Issuer," "Option," "Purchase Price" and "Issuer Common Stock"
shall be deemed to be references to "Substitute Option Issuer," "Substitute
Option," "Substitute Purchase Price" and "Substitute Common Stock,"
respectively.
8. REPURCHASE AT THE OPTION OF HOLDER.
(a) Subject to the last sentence of Section 3(a), at the
request of Holder at any time commencing upon the first occurrence of a
Repurchase Event (as defined in Section 8(d)) and ending 18 months immediately
thereafter, Issuer shall repurchase from Holder the Option and all shares of
Issuer Common Stock purchased by Holder pursuant hereto with respect to which
Holder then has beneficial ownership. The date on which Holder exercises its
rights under this Section 8 is referred to as the "Request Date." Such
repurchase shall be at an aggregate price (the "Section 8 Repurchase
Consideration") equal to the sum of:
(i) the aggregate Purchase Price paid by Holder for
any shares of Issuer Common Stock acquired by Holder pursuant to the
Option with respect to which Holder then has beneficial ownership;
(ii) the excess, if any, of (x) the Applicable Price
(as defined below) for each share of Issuer Common Stock over (y) the
Purchase Price (subject to adjustment pursuant to Section 7),
multiplied by the number of shares of Issuer Common Stock with respect
to which the Option has not been exercised; and
(iii) the excess, if any, of the Applicable Price
over the Purchase Price (subject to adjustment pursuant to Section 7)
paid (or, in the case of Option Shares with respect to which the Option
has been exercised but the Closing Date has not occurred, payable) by
Holder for each share of Issuer Common Stock with respect to which the
Option has been exercised and with respect to which Holder then has
beneficial ownership, multiplied by the number of such shares.
(b) If Holder exercises its rights under this Section 8,
Issuer shall, within ten business days after the Request Date, pay the Section 8
Repurchase Consideration to Holder in immediately available funds, and
contemporaneously with such payment Holder shall surrender to Issuer the Option
and the certificates evidencing the shares of Issuer Common Stock purchased
thereunder with respect to which Holder then has beneficial ownership, and
Holder shall warrant that it has sole record and beneficial ownership of such
shares and that the same are then free and clear of all liens, claims, charges
and encumbrances of any kind whatsoever. Notwithstanding the foregoing, to the
extent that prior notification to or Consent of any governmental or regulatory
agency or authority is required in connection with the payment of all or any
portion of the Section 8 Repurchase Consideration, Holder shall have the ongoing
option to revoke its request for repurchase pursuant to Section 8, in whole or
in part, or to require that Issuer deliver from time to time that portion of the
Section 8 Repurchase Consideration that it is not then so prohibited from paying
and promptly file the required notice or application for
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Consent and expeditiously process the same (and each party shall cooperate with
the other in the filing of any such notice or application and the obtaining of
any such Consent). If any governmental or regulatory agency or authority
disapproves of any part of Issuer's proposed repurchase pursuant to this Section
8, Issuer shall promptly give notice of such fact to Holder. If any governmental
or regulatory agency or authority prohibits the repurchase in part but not in
whole, then Holder shall have the right (i) to revoke the repurchase request or
(ii) to the extent permitted by such agency or authority, determine whether the
repurchase should apply to the Option and/or Option Shares and to what extent to
each, and Holder shall thereupon have the right to exercise the Option as to the
number of Option Shares for which the Option was exercisable at the Request Date
less the sum of the number of shares covered by the Option in respect of which
payment has been made pursuant to Section 8(a)(ii) and the number of shares
covered by the portion of the Option (if any) that has been repurchased. Holder
shall notify Issuer of its determination under the preceding sentence within
five business days of receipt of notice of disapproval of the repurchase.
Notwithstanding anything herein to the contrary, all of
Holder's rights under this Section 8 shall terminate on the date of termination
of this Option pursuant to Section 3(a).
(c) For purposes of this Agreement, the "Applicable
Price" means the highest of (i) the highest price per share of Issuer Common
Stock paid for any such share by the person or groups described in Section
8(d)(i), (ii) the price per share of Issuer Common Stock received by holders of
Issuer Common Stock in connection with any merger or other business combination
transaction described in Section 7(b)(i), 7(b)(ii) or 7(b)(iii), or (iii) the
highest last sale price per share of Issuer Common Stock quoted on the Nasdaq
National Market (or if Issuer Common Stock is not quoted on such exchange, the
highest bid price per share as quoted on the principal trading market or
securities exchange on which such shares are traded as reported by a recognized
source chosen by Holder) during the 60 business days preceding the Request Date;
provided, however, that in the event of a sale of less than all of Issuer's
Assets, the Applicable Price shall be the sum of the price paid in such sale for
such assets and the current market value of the remaining assets of Issuer as
determined by an independent nationally recognized investment banking firm
selected by Holder and reasonably acceptable to Issuer (which determination
shall be conclusive for all purposes of this Agreement), divided by the number
of shares of the Issuer Common Stock outstanding at the time of such sale. If
the consideration to be offered, paid or received pursuant to either of the
foregoing clauses (i) or (ii) shall be other than in cash, the value of such
consideration shall be determined in good faith by an independent nationally
recognized investment banking firm selected by Holder and reasonably acceptable
to Issuer, which determination shall be conclusive for all purposes of this
Agreement.
(d) As used herein, a "Repurchase Event" shall occur if
(i) any person (other than Grantee or any subsidiary of Grantee shall have
acquired beneficial ownership (as such term is defined in Rule 13d-3 promulgated
under the Exchange Act), or the right to acquire beneficial ownership, or any
"group" (as such term is defined under the Exchange Act) shall have been formed
which beneficially owns or has the right to acquire beneficial ownership of 50%
or more of the then-outstanding shares of Issuer Common Stock, or (ii) any of
the transactions described in Section 7(b)(i), 7(b)(ii), or 7(iii) shall be
consummated.
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9. REGISTRATION RIGHTS.
(a) Issuer shall, subject to the conditions of subparagraph
(c) below, if requested by any Holder, including Grantee and any permitted
transferee ("Selling Holder"), as expeditiously as possible prepare and file a
registration statement under the Securities Laws if necessary in order to permit
the sale or other disposition of any or all shares of Issuer Common Stock or
other securities that have been acquired by or are issuable to Selling Holder
upon exercise of the Option in accordance with the intended method of sale or
other disposition stated by Holder in such request (it being understood and
agreed that any such sale or other disposition shall be effected on a widely
distributed basis so that, upon consummation thereof, no purchaser or transferee
shall beneficially own more than 5% of the shares of Issuer Common Stock then
outstanding), including, without limitation, a "shelf" registration statement
under Rule 415 under the Securities Act or any successor provision, and Issuer
shall use its best efforts to qualify such shares or other securities for sale
under any applicable state securities laws. Each such Holder shall provide all
information reasonably requested by Issuer for inclusion in any registration
statement to be filed hereunder.
(b) If Issuer at any time after the exercise of the
Option, but prior to the termination of the Option, proposes to register any
shares of Issuer Common Stock under the Securities Laws in connection with an
underwritten public offering of such Issuer Common Stock, Issuer will promptly
give written notice to Holder of its intention to do so and, upon the written
request of Holder given within 30 days after receipt of any such notice (which
request shall specify the number of shares of Issuer Common Stock intended to be
included in such underwritten public offering by Selling Holder), Issuer will
use all reasonable efforts to cause all such shares, the holders of which shall
have requested participation in such registration, to be so registered and
included in such underwritten public offering; provided, that Issuer may elect
to not cause any such shares to be so registered (i) if the underwriters in good
faith determine that the inclusion of such shares would interfere with the
successful marketing of the shares of Issuer Common Stock for the account of
Issuer, or (ii) in the case of a registration solely to implement a dividend
reinvestment or similar plan, an employee benefit plan or a registration filed
on Form S-4 or any successor form, or a registration filed on a form which does
not permit registrations of resales; provided, further, that such election
pursuant to clause (i) may only be made once. If some but not all the shares of
Issuer Common Stock, with respect to which Issuer shall have received requests
for registration pursuant to this subparagraph (b), shall be excluded from such
registration, Issuer shall make appropriate allocation of shares to be
registered among Selling Holders and any other person (other than Issuer or any
person exercising demand registration rights in connection with such
registration) who or which is permitted to register their shares of Issuer
Common Stock in connection with such registration pro rata in the proportion
that the number of shares requested to be registered by each Selling Holder
bears to the total number of shares requested to be registered by all persons
then desiring to have Issuer Common Stock registered for sale (other than Issuer
or any person exercising demand registration rights in connection with such
registration).
(c) Issuer shall use all reasonable efforts to cause the
registration statement referred to in subparagraph (a) above to become effective
and to obtain all consents or waivers of other parties which are required
therefor and to keep such registration statement effective, provided, that
Issuer may delay any registration of Option Shares required pursuant to
subparagraph (a) above for a period not exceeding 90 days, provided Issuer shall
in good faith
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determine that any such registration would adversely affect an offering or
contemplated offering of other securities by Issuer. Notwithstanding anything to
the contrary contained herein, Issuer shall not be required to register Option
Shares under the Securities Laws pursuant to subparagraph (a) above:
(i) prior to the occurrence of a Purchase Event
and following the termination of the Option;
(ii) more than twice;
(iii) within 90 days after the effective date of a
registration referred to in subparagraph (b) above pursuant to which
the Selling Holders concerned were afforded the opportunity to register
such shares under the Securities Laws and such shares were registered
as requested; and
(iv) unless a request therefor is made to Issuer by
Selling Holders holding at least 15% or more of the aggregate number of
Option Shares then outstanding or the right to acquire at least 15% of
the Option Shares.
In addition to the foregoing, Issuer shall not be required to
maintain the effectiveness of any registration statement after the expiration of
120 days from the effective date of such registration statement. Issuer shall
use all reasonable efforts to make any filings, and take all steps, under all
applicable state securities laws to the extent necessary to permit the sale or
other disposition of the Option Shares so registered in accordance with the
intended method of distribution for such shares, provided, that Issuer shall not
be required to consent to general jurisdiction or qualify to do business in any
state where it is not otherwise required to so consent to such jurisdiction or
to so qualify to do business.
(d) Except where applicable state law prohibits such
payments, Issuer will pay all expenses (including without limitation
registration fees, qualification fees, blue sky fees and expenses (including the
fees and expenses of Issuer's counsel), accounting expenses, printing expenses,
expenses of underwriters, excluding discounts and commissions but including
liability insurance if Issuer so desires or the underwriters so require, and the
reasonable fees and expenses of any necessary special experts) in connection
with each registration pursuant to subparagraph (a) or (b) above (including the
related offerings and sales by Selling Holders) and all other qualifications,
notifications or exemptions pursuant to subparagraph (a) or (b) above.
Underwriting discounts and commissions relating to Option Shares and any other
expenses incurred by such Selling Holders in connection with any such
registration (including expenses of Selling Holders' counsel) shall be borne by
such Selling Holders.
(e) In connection with any registration under
subparagraph (a) or (b) above Issuer hereby agrees to indemnify the Selling
Holders, and each underwriter thereof, including each person, if any, who
controls such holder or underwriter within the meaning of Section 15 of the
Securities Act, against all expenses, losses, claims, damages and liabilities
caused by any untrue statement of a material fact contained in any registration
statement or prospectus (including any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission to state therein a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not
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misleading, except insofar as such expenses, losses, claims, damages or
liabilities of such indemnified party are caused by any untrue statement or
alleged untrue statement or any omission or alleged omission made in reliance
upon and in conformity with, information furnished in writing to Issuer by such
indemnified party expressly for use therein, and Issuer and each officer,
director and controlling person of Issuer shall be indemnified by such Selling
Holder, or by such underwriter, as the case may be, for all such expenses,
losses, claims, damages and liabilities caused by any untrue, or alleged untrue,
statement or omission made in reliance upon, and in conformity with, information
furnished in writing to Issuer by such holder or such underwriter, as the case
may be, expressly for such use.
Promptly upon receipt by a party indemnified under this
subparagraph (e) of notice of the commencement of any action against such
indemnified party in respect of which indemnity or reimbursement may be sought
against any indemnifying party under this subparagraph (e), such indemnified
party shall notify the indemnifying party in writing of the commencement of such
action, but the failure so to notify the indemnifying party shall not relieve it
of any liability which it may otherwise have to any indemnified party under this
subparagraph (e), except to the extent such failure to notify materially
prejudices the indemnifying party. In case notice of commencement of any such
action shall be given to the indemnifying party as above provided, the
indemnifying party shall be entitled to participate in and, to the extent it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense of such action at its own expense, with counsel chosen by it and
reasonably satisfactory to such indemnified party. The indemnified party shall
have the right to employ separate counsel in any such action and participate in
the defense thereof, but the fees and expenses of such counsel (other than
reasonable costs of investigation) shall be paid by the indemnified party unless
(i) the indemnifying party either agrees to pay the same, (ii) the indemnifying
party falls to assume the defense of such action with counsel satisfactory to
the indemnified party, or (iii) the indemnified party has been advised by
counsel that one or more legal defenses may be available to the indemnifying
party that may be contrary to the interest of the indemnified party, in which
case the indemnifying party shall be entitled to assume the defense of such
action notwithstanding its obligation to bear fees and expenses of such counsel;
provided, however, that the indemnifying party shall not be liable for the
expenses of more than one firm of counsel for all indemnified parties in any
jurisdiction. No indemnifying party shall be liable for any settlement entered
into without its consent, which consent may not be unreasonably withheld.
If the indemnification provided for in this subparagraph (e)
is unavailable to a party otherwise entitled to be indemnified in respect of any
expenses, losses, claims, damages or liabilities referred to herein, then the
indemnifying party, in lieu of indemnifying such party otherwise entitled to be
indemnified, shall contribute to the amount paid or payable by such party to be
indemnified as a result of such expenses, losses, claims, damages or liabilities
in such proportion as is appropriate to reflect the relative benefits received
by Issuer, all Selling Holders and the underwriters from the offering of the
securities and also the relative fault of Issuer, all Selling Holders and the
underwriters in connection with the statements or omissions which resulted in
such expenses, losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The amount paid or payable by a party as a
result of the expenses, losses, claims, damages and liabilities referred to
above shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any action
or claim; provided, that in no case shall any Selling Holder be responsible, in
the aggregate, for any amount in excess of the net offering proceeds
attributable to its Option
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Shares included in the offering. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. Any obligation by any holder to indemnify shall be
several and not joint with other holders.
In connection with any registration pursuant to subparagraph
(a) or (b) above, Issuer and each Selling Holder (other than Grantee) shall
enter into an agreement containing the indemnification provisions of this
subparagraph (e).
(f) Issuer shall use its best efforts to comply with all
reporting requirements and will do all such other things as may be necessary to
permit the expeditious sale at any time of any Option Shares by Holder in
accordance with and to the extent permitted by any rule or regulation
promulgated by the SEC from time to time, including, without limitation, Rules
144 and 144A.
(g) Issuer will pay all stamp taxes in connection with
the issuance and the sale of the Option Shares and in connection with the
exercise of the Option, and will save Holder harmless, without limitation as to
time, against any and all liabilities, with respect to all such taxes.
10. QUOTATION; LISTING. If Issuer Common Stock or any other securities
to be acquired upon exercise of the Option are then authorized for quotation or
trading or listing on any securities exchange or any automated quotations system
maintained by a self-regulatory organization, Issuer, upon the request of
Holder, will promptly file an application, if required, to authorize for
quotation or trading or listing the shares of Issuer Common Stock or other
securities to be acquired upon exercise of the Option on the securities exchange
or any automated quotations system maintained by a self-regulatory organization
and will use its best efforts to obtain approval, if required, of such quotation
or listing as soon as practicable.
11. DIVISION OF OPTION. This Agreement (and the Option granted hereby)
are exchangeable, without expense, at the option of Holder, upon presentation
and surrender of this Agreement at the principal office of Issuer for other
Agreements providing for Options of different denominations entitling the holder
thereof to purchase in the aggregate the same number of shares of Issuer Common
Stock purchasable hereunder. The terms "Agreement" and "Option" as used herein
include any other Agreements and related Options for which this Agreement (and
the Option granted hereby) may be exchanged. Upon receipt by Issuer of evidence
reasonably satisfactory to it of the loss, theft, destruction or mutilation of
this Agreement, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Agreement, if mutilated, Issuer will execute and deliver a new Agreement of like
tenor and date. Any such new Agreement executed and delivered shall constitute
an additional contractual obligation on the part of Issuer, whether or not the
Agreement so lost, stolen, destroyed or mutilated shall at any time be
enforceable by anyone.
12. MISCELLANEOUS.
(a) EXPENSES. Except as otherwise provided in Section 9,
each of the parties hereto shall bear and pay all costs and expenses incurred by
it or on its behalf in connection with the transactions contemplated hereunder,
including fees and expenses of its own financial consultants, investment
bankers, accountants and counsel.
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(b) WAIVER AND AMENDMENT. Any provision of this Agreement
may be waived at any time by the party that is entitled to the benefits of such
provision. This Agreement may not be modified, amended, altered or supplemented
except upon the execution and delivery of a written agreement executed by the
parties hereto.
(c) ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARY;
SEVERABILITY. This Agreement, together with the Merger Agreement and the other
documents and instruments referred to herein and therein, between Grantee and
Issuer (a) constitutes the entire agreement and supersedes all prior agreements
and understandings, both written and oral, between the parties with respect to
the subject matter hereof and (b) is not intended to confer upon any person
other than the parties hereto (other than any transferees of the Option Shares
or any permitted transferee of this Agreement pursuant to Section 12(h) and
other than as provided in the Merger Agreement) any rights or remedies
hereunder. If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction or a federal or state governmental or
regulatory agency or authority to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated. If for any reason such court or regulatory agency determines
that the Option does not permit Holder to acquire, or does not require Issuer to
repurchase, the full number of shares of Issuer Common Stock as provided in
Sections 3 and 8 (as adjusted pursuant to Section 7), it is the express
intention of Issuer to allow Holder to acquire or to require Issuer to
repurchase such lesser number of shares as may be permissible without any
amendment or modification hereof.
(d) GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the laws of the State of Tennessee without regard
to any applicable conflicts of law rules.
(e) DESCRIPTIVE HEADINGS. The descriptive headings
contained herein are for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
(f) NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered personally,
telecopied (with confirmation) or mailed by registered or certified mail (return
receipt requested) to the parties at the addresses set forth in the Merger
Agreement(or at such other address for a party as shall be specified by like
notice).
(g) COUNTERPARTS. This Agreement and any amendments
hereto may be executed in two counterparts, each of which shall be considered
one and the same agreement and shall become effective when both counterparts
have been signed, it being understood that both parties need not sign the same
counterpart.
(h) ASSIGNMENT. Neither this Agreement nor any of the
rights, interests or obligations hereunder or under the Option shall be assigned
by any of the parties hereto (whether by operation of law or otherwise) without
the prior written consent of the other party, except that Grantee may assign
this Agreement to a wholly owned Subsidiary of Grantee and Grantee may assign
its rights hereunder in whole or in part after the occurrence of a Purchase
Event. Subject to the preceding sentence, this Agreement shall be binding upon,
inure to the benefit of and be enforceable by the parties and their respective
successors and assigns.
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(i) FURTHER ASSURANCES. In the event of any exercise of
the Option by Holder, Issuer and Holder shall execute and deliver all other
documents and instruments and take all other action that may be reasonably
necessary in order to consummate the transactions provided for by such exercise.
(j) SPECIFIC PERFORMANCE. The parties hereto agree that
this Agreement may be enforced by either party through specific performance,
injunctive relief and other equitable relief. Both parties further agree to
waive any requirement for the securing or posting of any bond in connection with
the obtaining of any such equitable relief and that this provision is without
prejudice to any other rights that the parties hereto may have for any failure
to perform this Agreement.
(k) CONFIDENTIALITY AGREEMENTS. The parties hereto agree
that this Agreement supersedes any provision of the Confidentiality Agreements
that could be interpreted to preclude the exercise of any rights or the
fulfillment of any obligations under this Agreement, and that none of the
provisions included in the Confidentiality Agreements will act to preclude
Holder from exercising the Option or exercising any other rights under this
Agreement or act to preclude Issuer from fulfilling any of its obligations under
this Agreement.
IN WITNESS WHEREOF, Issuer and Grantee have caused this Stock
Option Agreement to be signed by their respective officers thereunto duly
authorized, all as of the day and year first written above.
ATTEST: AMBANC CORP.
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------------- -----------------------------------
Xxxx X. Xxxxx, Secretary Xxxxxx X. Xxxxxx
Chairman, President, and
Chief Executive Officer
[CORPORATE SEAL]
ATTEST: UNION PLANTERS CORPORATION
By: /s/ X. Xxxxx House, Jr. By: /s/ Xxxxxxxx X. Xxxxxxx, Xx.
------------------------------- -----------------------------------
X. Xxxxx, House, Jr. Xxxxxxxx X. Xxxxxxx, Xx.
Secretary Chairman and Chief Executive
Officer
[CORPORATE SEAL]
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Exhibit 2
PLAN OF MERGER
OF
AMBANC CORP.
INTO AND WITH
UNION PLANTERS HOLDING CORPORATION
Pursuant to this Plan of Merger ("Plan of Merger"), AMBANC
CORP., ("Ambanc"), a corporation organized and existing under the Laws of the
State of Indiana, shall be merged into and with UNION PLANTERS HOLDING
CORPORATION ("UPHC"), a corporation organized and existing under the laws of the
State of Tennessee and a wholly-owned subsidiary of UNION PLANTERS CORPORATION,
a corporation organized and existing under the laws of the State of Tennessee
("UPC").
ARTICLE 1.
DEFINITIONS
Except as otherwise provided herein, the capitalized terms set
forth below shall have the following meanings:
(a) "AMBANC COMMON STOCK" shall mean the $10.00 par value
common stock of Ambanc.
(b) "AMBANC COMPANIES" shall mean, collectively, Ambanc and
all Ambanc Subsidiaries.
(c) "AMBANC STOCK PLANS" shall have the meaning set forth in
the Merger Agreement.
(d) "AMBANC SUBSIDIARIES" shall have the meaning set forth in
the Merger Agreement.
(e) "ARTICLES OF MERGER" shall mean the Articles of Merger to
be executed by UPHC and filed with the Secretary of State of the State of
Tennessee and the Secretary of State of the State of Indiana relating to the
Merger as contemplated by Section 2.1 of this Plan of Merger.
(f) "CONSENT" shall mean any consent, approval, authorization,
clearance, exemption, waiver, or similar affirmation by any Person pursuant to
any Contract, Law, Order, or Permit.
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(g) "EFFECTIVE TIME" shall mean the date and time on which the
Merger becomes effective as defined in Section 2.2 of this Plan of Merger.
(h) "EXCHANGE AGENT" shall mean the exchange agent selected by
UPC.
(i) "IBCL" shall mean the Indiana Business Corporation Law.
(j) "INTERNAL REVENUE CODE" shall mean the Internal Revenue
Code of 1986, as amended, and the rules and regulations promulgated thereunder.
(k) "LAW" shall mean any code, law, ordinance, regulation,
reporting or licensing requirement, rule, or statute applicable to a person or
its assets, liabilities, or business, including those promulgated, interpreted,
or enforced by any Regulatory Authority.
(l) "MERGER" shall mean the merger of Ambanc into and with
UPHC as provided in Section 2.1 of this Plan of Merger.
(m) "MERGER AGREEMENT" shall mean the Agreement and Plan of
Reorganization, dated as of March 31, 1998, by and between UPC and Ambanc.
(n) "NYSE" shall mean the New York Stock Exchange, Inc.
(o) "REGULATORY AUTHORITIES" shall mean, collectively, the
Federal Trade Commission, the United States Department of Justice, the Board of
the Governors of the Federal Reserve System, the Office of the Comptroller of
the Currency, the Federal Deposit Insurance Corporation, the Office of Thrift
Supervision, all state regulatory agencies having jurisdiction over the Parties
and their respective Subsidiaries, the NASD, the NYSE, and the SEC.
(p) "SEC" shall mean the United States Securities and Exchange
Commission.
(q) "STOCKHOLDERS' MEETING" shall mean the meeting of the
stockholders of Ambanc to be held pursuant to Section 8.1 of the Merger
Agreement, including any adjournment or adjournments thereof.
(r) "SUBSIDIARIES" shall mean all those corporations, banks,
associations, or other entities of which the entity in question owns or controls
50% or more of the outstanding equity securities either directly or through an
unbroken chain of entities as to each of which 50% or more of the outstanding
equity securities is owned directly or indirectly by its parent; provided, there
shall not be included any such entity acquired through foreclosure or any such
entity the equity securities of which are owned or controlled in a fiduciary
capacity.
(s) "SURVIVING CORPORATION" shall refer to UPHC as the
surviving corporation resulting from the Merger.
(t) "TBCA" shall mean the Tennessee Business Corporation Act,
as in effect at the Effective Time.
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(u) "UPC CAPITAL STOCK" shall mean, collectively, the UPC
Common Stock, the UPC Preferred Stock, and any other class or series of capital
stock of UPC.
(v) "UPC COMMON STOCK" shall mean the $5.00 par value common
stock of UPC.
(w) "UPC COMPANIES" shall mean, collectively, UPC and all UPC
Subsidiaries.
(x) "UPC PREFERRED STOCK" shall mean the no par value
preferred stock of UPC and shall include the (i) Series A Preferred Stock and
(ii) Series E, 8% Cumulative, Convertible Preferred Stock, of UPC.
(y) "UPC RIGHTS" shall mean the preferred stock purchase
nights issued pursuant to the UPC Rights Agreement.
(z) "UPC RIGHTS AGREEMENT" shall mean that certain Rights
Agreement, dated January 19, 1989, between UPC and Union Planters Bank, National
Association, as Rights Agent.
(aa) "UPHC COMMON STOCK" shall mean the $1.00 par value common
stock of UPHC.
(ab) The terms set forth below shall have the meanings
ascribed to them in Section 3.6:
Average Closing Price Determination Date
Index Group Index Price
Index Ratio Starting Date
Starting Price UPC Ratio
Any capitalized term not defined herein shall have the meaning
ascribed to it in the Merger Agreement.
ARTICLE 2.
TRANSACTIONS AND TERMS OF MERGER
(a) MERGER. Subject to the terms and conditions of this Plan
of Merger, at the Effective Time, Ambanc shall be merged with and into UPHC in
accordance with the provisions of IC 23-1-40-7 of the IBCL and with the effect
provided in IC 23-1-40-6 of the IBCL and in accordance with the provisions of
Section 00-00-000 of the TBCA and with the effect provided in Section 00-00-000
of the TBCA (the "Merger"). UPHC shall be the Surviving Corporation resulting
from the Merger and shall continue to be governed by the Laws of the State of
Tennessee.
(b) EFFECTIVE TIME. The Merger and the other transactions
contemplated by this Plan of Merger shall become effective on the date and at
the time the Articles of Merger shall become effective with the Secretary of
State of the State of Indiana and the Secretary of State
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of the State of Tennessee (the "Effective Time"). Subject to the terms and
conditions hereof, unless otherwise mutually agreed upon in writing by the duly
authorized officers of each Party, the Parties shall use their reasonable
efforts to cause the Effective Time to occur on or before the 15th business day
(as designated by UPC) following the last to occur of (i) the effective date
(including expiration of any applicable waiting period) of the last required
Consent of any Regulatory Authority having authority over and approving or
exempting the Merger, and (ii) the date on which the stockholders of Ambanc
approve the matters relating to this Plan of Merger required to be approved by
such stockholders by applicable Law.
(c) CHARTER. The Charter of UPHC in effect immediately prior
to the Effective Time shall be the Charter of the Surviving Corporation after
the Effective Time until otherwise amended or repealed.
(d) BYLAWS. The Bylaws of UPHC in effect immediately prior to
the Effective Time shall be the Bylaws of the Surviving Corporation after the
Effective Time until otherwise amended or repealed.
(e) DIRECTORS AND OFFICERS. The directors of UPHC in office
immediately prior to the Effective Time, together with such additional
individuals thereafter elected, shall serve as the directors of the Surviving
Corporation from and after the Effective Time in accordance with the Bylaws of
the Surviving Corporation. The officers of UPHC in office immediately prior to
the Effective Time, together with such additional individuals thereafter
elected, shall serve as the officers of the Surviving Corporation from and after
the Effective Time in accordance with the Bylaws of the Surviving Corporation.
ARTICLE 3.
MANNER OF CONVERTING SHARES
(a) CONVERSION OF SHARES. Subject to the provisions of this
Article 3, at the Effective Time, by virtue of the Merger and without any action
on the part of UPC or Ambanc, or the stockholders of either of the foregoing,
the shares of the constituent corporations shall be converted as follows:
(i) Each share of UPC Capital Stock issued and
outstanding immediately prior to the Effective Time shall remain issued
and outstanding from and after the Effective Time.
(ii) Each share of UPHC Common Stock issued and
outstanding immediately prior to the Effective Time shall remain issued
and outstanding from and after the Effective Time.
(iii) Each share of Ambanc Common Stock, but
excluding shares held by any Ambanc Company or any UPC Company (in each
case other than in a fiduciary capacity or as a result of debts
previously contracted) issued and outstanding at the Effective Time
shall be converted into 0.4841 of a share of UPC Common Stock (subject
to possible adjustment as set forth in Section 3.6 of this Plan of
Merger, the "Exchange
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Ratio"). Pursuant to the UPC Rights Agreement, each share of UPC Common
Stock issued in connection with the Merger upon conversion of Ambanc
Common Stock shall be accompanied by a UPC Right.
(b) ANTI-DILUTION PROVISIONS. In the event Ambanc changes the
number of shares of Ambanc Common Stock issued and outstanding prior to the
Effective Time as a result of a stock split, stock dividend, recapitalization.
or similar transaction with respect to such stock, the Exchange Ratio, as the
case may be, shall be proportionately adjusted. In the event UPC changes the
number of shares of UPC Common Stock issued and outstanding prior to the
Effective Time as a result of a stock split, stock dividend, recapitalization,
or similar transaction with respect to such stock and the record date therefor
(in the case of a stock dividend) or the effective date thereof (in the case of
a stock split or similar recapitalization for which a record date is not
established) shall be prior to the Effective Time, the Exchange Ratio shall be
proportionately adjusted.
(c) SHARES HELD BY AMBANC OR UPC. Each of the shares of Ambanc
Common Stock issued but not outstanding or held by any Ambanc Company or by any
UPC Company, in each case other than in a fiduciary capacity or as a result of
debts previously contracted, shall be canceled and retired at the Effective Time
and no consideration shall be issued in exchange therefor.
(d) FRACTIONAL SHARES. Notwithstanding any other provision of
this Plan of Merger, each holder of shares of Ambanc Common Stock exchanged
pursuant to the Merger who would otherwise have been entitled to receive a
fraction of a share of UPC Common Stock (after taking into account all
certificates delivered by such holder) shall receive, in lieu thereof, cash
(without interest) in an amount equal to such fractional part of a share of UPC
Common Stock multiplied by the market value of one share of UPC Common Stock at
the Effective Time. The market value of one share of UPC Common Stock at the
Effective Time shall be the last sale price of UPC Common Stock on the
NYSE-Composite Transactions List (as reported by The Wall Street Journal or, if
not reported thereby, any other authoritative source selected by UPC) on the
last trading day preceding the Effective Time. No such holder will be entitled
to dividends, voting rights, or any other rights as a stockholder in respect of
any fractional shares.
(e) CONVERSION OF STOCK RIGHTS.
(i) At the Effective Time, each award, option, or
other right to purchase or acquire shares of Ambanc Common Stock pursuant to
stock options, stock appreciation rights, or stock awards ("Ambanc Rights")
granted by Ambanc under the Ambanc Stock Plans, which are outstanding at the
Effective Time, whether or not exercisable, shall be converted into and become
rights with respect to UPC Common Stock, and UPC shall assume each Ambanc Right,
in accordance with the terms of the Ambanc Stock Plan and stock option agreement
by which it is evidenced, except that from and after the Effective Time, (i) UPC
and its Salary and Benefits Committee shall be substituted for Ambanc and the
Committee of Ambanc's Board of Directors (including, if applicable, the entire
Board of Directors of Ambanc) administering such Ambanc Stock Plan, (ii) each
Ambanc Right assumed by UPC may be exercised solely for shares of UPC Common
Stock (or cash in the case of stock appreciation rights), (iii) the number of
shares of UPC Common Stock subject to such Ambanc Right shall be equal to the
number of shares of Ambanc Common Stock subject to such Ambanc Right immediately
prior to the
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Effective Time multiplied by the Exchange Ratio and rounded down to the nearest
whole share, and (iv) the per share exercise price (or similar threshold price,
in the case of stock awards) under each such Ambanc Right shall be adjusted by
dividing the per share exercise (or threshold) price under each such Ambanc
Right by the Exchange Ratio and rounding up to the nearest cent. Notwithstanding
the provisions of clauses (iii) and (iv) of the first sentence of this Section
3.5, each Ambanc Right which is an "incentive stock option" stall be adjusted as
required by Section 424 of the Internal Revenue Code, so as not to constitute a
modification, extension, or renewal of the option, within the meaning of Section
424(h) of the Internal Revenue Code. UPC agrees to take all necessary steps to
effectuate the foregoing provisions of this Section 3.5.
(ii) As soon as reasonably practicable after the
Effective Time, UPC shall deliver to the participants in each Ambanc Stock Plan
an appropriate notice setting forth such participant's rights pursuant thereto
and the grants pursuant to such Ambanc Stock Plan shall continue in effect on
the same terms and conditions (subject to the adjustments required by Section
3.5(a) after giving effect to the Merger), and UPC shall comply with the terms
of each Ambanc Stock Plan to ensure, to the extent required by, and subject to
the provisions of, such Ambanc Stock Plan, that Ambanc Rights which qualified as
incentive stock options prior to the Effective Time continue to qualify as
incentive stock options after the Effective Time. At or prior to the Effective
Time, UPC shall take all corporate action necessary to reserve for issuance
sufficient shares of UPC Common Stock for delivery upon exercise of Ambanc
Rights assumed by it in accordance with this Section 3.5. As soon as reasonably
practicable after the Effective Time, UPC shall file a registration statement on
Form S-3 or Form S-8, as the case may be (or any successor or other appropriate
forms), with respect to the shares of UPC Common Stock subject to such options
and shall use its reasonable efforts to maintain the effectiveness of such
registration statements (and maintain the current status of the prospectus or
prospectuses contained therein) for so long as such options remain outstanding.
With respect to those individuals who subsequent to the Merger shall be subject
to the reporting requirements under Section 16(a) of the 1934 Act, where
applicable, UPC shall administer the Ambanc Stock Plan assumed pursuant to this
Section 3.5 in a manner that complies with Rule 16b-3 promulgated under the 1934
Act.
(iii) All restrictions or limitations on transfer
with respect to Ambanc Common Stock awarded under the Ambanc Stock Plans or any
other plan, program, or arrangement of any Ambanc Company, to the extent that
such restrictions or limitations shall not have already lapsed, and except as
otherwise expressly provided in such plan, program, or arrangement, shall remain
in full force and effect with respect to shares of UPC Common Stock into which
such restricted stock is converted pursuant to Section 3.1 of this Plan of
Merger.
(f) ADJUSTMENT OF EXCHANGE RATIO. If the Board of Directors of
Ambanc provides written notice to UPC in accordance with the Merger Agreement
that Ambanc refuses to consummate the Merger because, at any time during the
ten-day period commencing two days after the Determination Date, both:
(i) the Average Closing Price shall be less than the
product of (i) 0.80 and (ii) the Starting Price; and
(ii) (i) the quotient obtained by dividing the
Average Closing Price by the Starting Price (such
number being referred to herein as the "UPC
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Ratio") shall be less than (ii) the quotient obtained
by dividing the Index Price on the Determination Date
by the Index Price on the Starting Date and
subtracting 0.15 from the quotient in this clause
(b)(ii) (such number being referred to herein as the
"Index Ratio");
then, during the five-day period commencing with its receipt of such notice, UPC
shall have the option to elect to increase the Exchange Ratio to equal the
lesser of (i) the quotient obtained by dividing (1) the product of 0.80, the
Starting Price, and the Exchange Ratio (as then in effect) by (2) the Average
Closing Price, and (ii) the quotient obtained by dividing (1) the product of the
Index Ratio and the Exchange Ratio (as then in effect) by (2) the UPC Ratio. If
UPC makes an election contemplated by the preceding sentence, within such
five-day period, it shall give prompt written notice to Ambanc of such election
and the revised Exchange Ratio, whereupon no termination shall have occurred
pursuant to the Merger Agreement and this Plan of Merger shall remain in effect
in accordance with its terms (except as the Exchange Ratio shall have been so
modified), and any references in this Plan of Merger to "Exchange Ratio" shall
thereafter be deemed to refer to the Exchange Ratio as adjusted pursuant to this
Section 3.6.
For purposes of this Section 3.6, the following terms shall
have the meanings indicated:
"Average Closing Price" shall mean the average of the daily
last sales prices of UPC Common Stock as reported on the NYSE (as reported by
The Wall Street Journal or, if not reported thereby, another authoritative
source as chosen by UPC) for the 20 consecutive full trading days in which such
shares are traded on the NYSE ending at the close of trading on the
Determination Date.
"Determination Date" shall mean the later of the date (i) of
the Stockholders' Meeting and (ii) on which the Consent of the Board of
Governors of the Federal Reserve System shall be received (without regard to any
requisite waiting period thereof).
"Index Group" shall mean the 14 bank holding companies listed
below, the common stocks of all of which shall be publicly traded and as to
which there shall not have been, since the Starting Date and before the
Determination Date, any public announcement of a proposal for such company to be
acquired or for such company to acquire another company or companies in
transactions with a value exceeding 25% of the acquiror's market capitalization
as of the Starting Date. In the event that any such company or companies are
removed from the Index Group as a result of any of the events described in the
preceding sentence, the weights (which shall be determined based upon the number
of outstanding shares of common stock) shall be redistributed proportionately
for purposes of determining the Index Price. The 14 bank holding companies and
the weights attributed to them are as follows:
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Bank Holding Companies Weighting
-------------------------------------------------------------------------- ---------
AmSouth Bancorporation 5.50%
BB&T Corporation 9.15
Crestar Financial Corporation 7.54
First American Corporation 3.99
First Security Corporation 7.92
First Tennessee National Corporation 4.38
Firstar Corporation 9.90
Huntington Bancshares, Inc. 13.08
Xxxxxxxx & Xxxxxx Corporation 6.93
Mercantile Bancorporation, Inc. 8.91
National Commerce Bancorp 3.34
Old Kent Financial Corporation 3.22
Regions Financial Corporation 9.31
SouthTrust Corporation 6.82
------
Total 100.00%
======
"Index Price" on a given date shall mean the weighted average
(weighted in accordance with the factors listed above) of the closing prices of
the companies composing the Index Group.
"Starting Date" shall mean the fourth full trading day after
the announcement by press release of the Merger.
"Starting Price" shall mean the closing price per share of UPC
Common Stock as reported on the NYSE (as reported by The Wall Street Journal or,
if not reported thereby, another authoritative source as chosen by UPC) on the
Starting Date.
If UPC or any company belonging to the Index Group declares or
effects a stock dividend, reclassification, recapitalization, split-up,
combination, exchange of shares, or similar transaction between the date of this
Agreement and the Determination Date, the prices for the common stock of such
company or UPC shall be appropriately adjusted for the purposes of applying this
Section 3.6.
ARTICLE 4.
EXCHANGE OF SHARES
(a) EXCHANGE PROCEDURES. Promptly after the Effective Time,
UPC and Ambanc shall cause the exchange agent selected by UPC (the "Exchange
Agent") to mail to the former stockholders of Ambanc appropriate transmittal
materials (which shall specify that delivery shall be effected, and risk of loss
and title to the certificates theretofore representing shares of Ambanc Common
Stock shall pass, only upon proper delivery of such certificates to the Exchange
Agent). After the Effective Time, each holder of shares of Ambanc Common Stock
(other than shares to be canceled pursuant to Section 3.3 of this Plan of
Merger) issued and outstanding at the Effective Time shall surrender the
certificate or certificates representing such shares to the
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Exchange Agent and shall promptly upon surrender thereof receive in exchange
therefor the consideration provided in Section 3.1 of this Plan of Merger,
together with all undelivered dividends or distributions in respect of such
shares (without interest thereon) pursuant to Section 4.2 of this Plan of
Merger. To the extent required by Section 3.4 of this Plan of Merger, each
holder of shares of Ambanc Common Stock issued and outstanding at the Effective
Time also shall receive, upon surrender of the certificate or certificates
representing such shares, cash in lieu of any fractional share of UPC Common
Stock to which such holder may be otherwise entitled (without interest). UPC
shall not be obligated to deliver the consideration to which any former holder
of Ambanc Common Stock is entitled as a result of the Merger until such holder
surrenders such holder's certificate or certificates representing the shares of
Ambanc Common Stock for exchange as provided in this Section 4.1. The
certificate or certificates of Ambanc Common Stock so surrendered shall be duly
endorsed as the Exchange Agent may require. Any other provision of this Plan of
Merger notwithstanding, neither the Surviving Corporation nor the Exchange Agent
shall be liable to a holder of Ambanc Common Stock for any amounts paid or
property delivered in good faith to a public official pursuant to any applicable
abandoned property Law.
(b) RIGHTS OF FORMER AMBANC STOCKHOLDERS. At the Effective
Time, the stock transfer books of Ambanc shall be closed as to holders of Ambanc
Common Stock immediately prior to the Effective Time and no transfer of Ambanc
Common Stock by any such holder shall thereafter be made or recognized. Until
surrendered for exchange in accordance with the provisions of Section 4.1 of
this Plan of Merger, each certificate theretofore representing shares of Ambanc
Common Stock (other than shares to be canceled pursuant to Section 3.3 of this
Plan of Merger) shall from and after the Effective Time represent for all
purposes only the right to receive the consideration provided in Sections 3.1
and 3.5 of this Plan of Merger in exchange therefor, subject, however, to the
Surviving Corporation's obligation to pay any dividends or make any other
distributions with a record date prior to the Effective Time which have been
declared or made by Ambanc in respect of such shares of Ambanc Common Stock in
accordance with the terms of this Plan of Merger and which remain unpaid at the
Effective Time. To the extent permitted by Law, former stockholders of record of
Ambanc shall be entitled to vote after the Effective Time at any meeting of UPC
stockholders the number of whole shares of UPC Common Stock into which their
respective shares of Ambanc Common Stock are converted, regardless of whether
such holders have exchanged their certificates representing Ambanc Common Stock
for certificates representing UPC Common Stock in accordance with the provisions
of this Plan of Merger. Whenever a dividend or other distribution is declared by
UPC on the UPC Common Stock, the record date for which is at or after the
Effective Time, the declaration shall include dividends or other distributions
on ali shares issuable pursuant to this Plan of Merger, but beginning 30 days
after the Effective Time no dividend or other distribution payable to the
holders of record of UPC Common Stock as of any time subsequent to the Effective
Time shall be delivered to the holder of any certificate representing shares of
Ambanc Common Stock issued and outstanding at the Effective Time until such
holder surrenders such certificate for exchange as provided in Section 4.1 of
this Plan of Merger. However, upon surrender of such Ambanc Common Stock
certificate, both the UPC Common Stock certificate (together with all such
undelivered dividends or other distributions without interest) and any
undelivered dividends and cash payments to be paid for fractional share
interests (without interest) shall be delivered and paid with respect to each
share represented by such certificate.
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ARTICLE 5.
MISCELLANEOUS
(a) CONDITIONS PRECEDENT. Consummation of the Merger by UPHC
shall be conditioned on the satisfaction of, or waiver by UPC of, the conditions
precedent to the Merger set forth in Sections 9.1 and 9.2 of the Merger
Agreement. Consummation of the Merger by Ambanc shall be conditioned on the
satisfaction of, or waiver by Ambanc of, of the conditions precedent to the
Merger set forth in Sections 9.1 and 9.3 of the Merger Agreement.
(b) TERMINATION. This Plan of Merger may be terminated at any
time prior to the Effective Time by the parties hereto as provided in Article 10
of the Merger Agreement.
(c) COUNTERPARTS. This Plan of Merger may be executed in
counterparts, each of which shall be an original; but all of such counterparts
together shall constitute one and the same instrument
IN WITNESS WHEREOF, the parties have caused their duly
authorized officers to execute this Plan of Merger as of the date first above
written.
AMBANC CORP.
ATTEST: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
--------------------------- ----------------------------------
Xxxx X. Xxxxx, Secretary Xxxxxx X. Xxxxxx,
Chairman, President, and
Chief Executive Officer
UNION PLANTERS HOLDING
CORPORATION
ATTEST:/s/ X. Xxxxx House, Jr. By: /s/ Xxxxxxx X. Xxxxx
--------------------------- ----------------------------------
X. Xxxxx House, Jr. Xxxxxxx X. Xxxxx
Secretary President
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EXHIBIT 3
AFFILIATE AGREEMENT
Union Planters Corporation
0000 Xxxxxxxx Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, President
and Chief Operating Officer
Gentlemen:
The undersigned is a shareholder of Ambanc Corp., a corporation
organized and existing under the laws of the State of Indiana, and will become a
shareholder of Union Planters Corporation ("UPC") pursuant to the transactions
described in the Agreement and Plan of Merger, dated as of ________________,
1998 (the "Agreement"), by and between UPC, Union Planters Holding Corporation
("Merger Subsidiary"), and Ambanc Corp. ("Ambanc"). Under the terms of the
Agreement, Ambanc will be merged with and into Merger Subsidiary (the "Merger"),
and shares of the $_____ par value common stock of Ambanc ("Ambanc Common
Stock") will be converted into and exchanged for shares of the $5.00 par value
common stock of UPC ("UPC Common Stock"). This Affiliate Agreement represents an
agreement between the undersigned and UPC regarding rights and obligations of
the undersigned in connection with the shares of UPC to be received by the
undersigned as a result of the Merger.
In consideration of the Merger and the mutual covenants contained
herein, the undersigned and UPC hereby agree as follows:
1. Affiliate Status. The undersigned understands and agrees that as to
Ambanc the undersigned is an "affiliate" under Rule 145(c) as defined in Rule
405 of the Rules and Regulations of the Securities and Exchange Commission
("SEC") under the Securities Act of 1933, as amended ("1933 Act"), and the
undersigned anticipates that the undersigned will be such an "affiliate" at the
time of the Merger.
2. Initial Restriction on Disposition. The undersigned agrees that the
undersigned will not sell, transfer, or otherwise dispose of the undersigned's
interest in, or reduce the under-signed's risk relative to, any of the shares of
UPC Common Stock into which the undersigned's shares of Ambanc Common Stock are
converted upon consummation of the Merger until such time as the requirements of
SEC Accounting Series Release Nos. 130 and 135 ("ASR 130 and 135") have been
met. The undersigned understands that ASR 130 and 135 relate to publication of
financial results of post-Merger combined operations of UPC and Ambanc. UPC
agrees that it will publish such results within 45 days after the end of the
first fiscal quarter of UPC containing the required period of post-Merger
combined operations and that it will notify the undersigned promptly following
such publication.
3. Covenants and Warranties of Undersigned. The undersigned represents,
warrants, and agrees that:
(a) During the 30 days immediately preceding the Effective Time of the
Merger, the undersigned will not sell, transfer or otherwise dispose of the
undersigned's interest in, or reduce
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the undersigned's risk relative to, any of the shares of Ambanc Common Stock
beneficially owned by the undersigned as of the date of the Shareholders'
Meeting of Ambanc held to approve the Merger.
(b) The UPC Common Stock received by the undersigned as a result of the
Merger will be taken for the undersigned's own account and not for others,
directly or indirectly, in whole or in part.
(c) UPC has informed the undersigned that any distribution by the
undersigned of UPC Common Stock has not been registered under the 1933 Act and
that shares of UPC Common Stock received pursuant to the Merger can only be sold
by the undersigned (1) following registration under the 1933 Act, or (2) in
conformity with the volume and other requirements of Rule 145(d) promulgated by
the SEC as the same now exists or may hereafter be amended, or (3) to the extent
some other exemption from registration under the 1933 Act might be available.
The undersigned understands that UPC is under no obligation to file a
registration statement with the SEC covering the disposition of the
undersigned's shares of UPC Common Stock or to take any other action necessary
to make compliance with an exemption from such registration available.
(d) The undersigned will register, and will cause each of the other
parties whose shares are deemed to be beneficially owned by the undersigned
pursuant to Section 8 hereof to have all shares of Ambanc Common Stock
beneficially owned by the undersigned registered in the name of the undersigned
or such parties, as applicable, prior to the Effective Date of the Merger and
not in the name of any bank, broker-dealer, nominee, or clearinghouse.
(e) The undersigned is aware that UPC intends to treat the Merger as a
tax-free reorganization under Section 368 of the Internal Revenue Code ("Code")
for federal income tax purposes. The undersigned agrees to treat the transaction
in the same manner as UPC for federal income tax purposes. The undersigned
acknowledges that Section 1.368-1(b) of the Income Tax Regulations requires
"continuity of interest" in order for the Merger to be treated as tax-free under
Section 368 of the Code. This requirement is satisfied if, taking into account
those Ambanc shareholders who receive cash in exchange for their stock, who
receive cash in lieu of fractional shares, or who dissent from the Merger, there
is no plan, or intention on the part of the Ambanc shareholders to sell or
otherwise dispose of the UPC Common Stock to be received in the Merger. The
undersigned has no prearrangement, plan, or intention to sell or otherwise
dispose of an amount of his UPC Common Stock to be received in the Merger which
would cause the foregoing requirement not to be satisfied.
4. Restrictions on Transfer. The undersigned understands and agrees
that stop order instructions with respect to the shares of UPC Common Stock
received by the undersigned pursuant to the Merger will be given to UPC's
Transfer Agent and that there will be placed on the certificates for such
shares, or shares issued in substitution thereof, a legend stating in substance:
"The shares represented by this certificate were issued pursuant to a
business combination which is accounted for as a "pooling of interests"
and may not be sold, nor may the owner thereof reduce his risks
relative thereto in any way, until
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such time as Union Planters Corporation ("UPC") has published the
financial results covering at least 30 days of combined operations
after the effective date of the merger through which the business
combination was effected. In addition, the shares represented by this
certificate may not be sold, transferred, or otherwise disposed of
except or unless (1) covered by an effective registration statement
under the Securities Act of 1933, as amended, (2) in accordance with
(i) Rule 145(d) (in the case of shares issued to an individual who is
not an affiliate of UPC) or (ii) Rule 144 (in the case of shares issued
to an individual who is an affiliate of UPC) of the Rules and
Regulations of such Act, or (3) in accordance with a legal opinion
satisfactory to counsel for UPC that such sale or offer is otherwise
exempt from the registration requirements of such Act."
Such legend will also be placed on any certificate representing UPC securities
issued subsequent to the original issuance of the UPC Common Stock pursuant to
the Merger as a result of any offer of such shares or any stock dividend, stock
split, or other recapitalization as long as the UPC Common Stock issued to the
undersigned pursuant to the Merger has not been transferred in such manner to
justify the removal of the legend therefrom. Upon the request of the
undersigned, UPC shall cause the certificates representing the shares of UPC
Common Stock issued to the undersigned in connection with the Merger to be
reissued free of any legend relating to restrictions on transfer by virtue of
ASR 130 and 135 as soon as practicable after the requirements of ASR 130 and 135
have been met. In addition, if the provisions of Rules 144 and 145 are amended
to delete restrictions applicable to the UPC Common Stock received by the
undersigned pursuant to the Merger, or at the expiration of the restrictive
period set forth in Rule 145(d), UPC, upon the request of the undersigned, will
cause the certificates representing the shares of UPC Common Stock issued to the
undersigned in connection with the Merger to be reissued free of any legend
relating to the restrictions set forth in Rules 144 and 145(d) upon receipt by
UPC of an opinion of its counsel to the effect that such legend may be removed.
5. Understanding of Restrictions on Dispositions. The undersigned has
carefully read the Agreement and this Affiliate Agreement and discussed their
requirements and impact upon his ability to sell, transfer, or otherwise dispose
of the shares of UPC Common Stock received by the undersigned, to the extent he
believes necessary, with his counsel or counsel for Ambanc.
6. Filing of Reports by UPC. UPC agrees, for a period of three years
after the Effective Time of the Merger, to file on a timely basis all reports
required to be filed by it pursuant to Section 13 of the Securities Exchange Act
of 1934, as amended, so that the public information provisions of Rule 145(d)
promulgated by the SEC as the same are presently in effect will be available to
the undersigned in the event the undersigned desires to transfer any shares of
UPC Common Stock issued to the undersigned pursuant to the Merger.
7. Transfer Under Rule 145(d). If the undersigned desires to sell or
otherwise transfer the shares of UPC Common Stock received by him in connection
with the Merger at any time during the restrictive period set forth in Rule
145(d), the undersigned will provide the necessary representation letter to the
transfer agent for UPC Common Stock together with such additional information as
the transfer agent for UPC Common Stock may reasonably request. If UPC's counsel
concludes that such proposed sale or transfer complies with the requirements of
Rule 145(d), UPC shall cause such counsel to provide such opinions as may be
necessary to UPC's transfer agent so that the undersigned may complete the
proposed sale or transfer.
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8. Acknowledgments. The undersigned recognizes and agrees that the
foregoing provisions also apply to all shares of the capital stock of Ambanc and
UPC that are deemed to be beneficially owned by the undersigned pursuant to
applicable federal securities laws, which the undersigned agrees may include,
without limitation, shares owned or held in the name of (i) the undersigned's
spouse, (ii) any relative of the undersigned or of the undersigned's spouse who
has the same home as the undersigned, (iii) any trust or estate in which the
undersigned, the undersigned's spouse, and any such relative collectively own at
least a 10% beneficial interest or of which any of the foregoing serves as
trustee, executor, or in any similar capacity, and (iv) any corporation or other
organization in which the undersigned, the undersigned's spouse and any such
relative collectively own at least 10% of any class of equity securities or of
the equity interest. The undersigned further recognizes that, in the event that
the undersigned is a director or officer of UPC or becomes a director or officer
of UPC upon consummation of the Merger, among other things, any sale of UPC
Common Stock by the undersigned within a period of less than six months
following the Effective Time of the Merger may subject the undersigned to
liability pursuant to Section 16(b) of the Securities Exchange Act of 1934, as
amended.
9. Miscellaneous. This Affiliate Agreement is the complete agreement
between UPC and the undersigned concerning the subject matter hereof. Any notice
required to be sent to any party hereunder shall be sent by registered or
certified mail, return receipt requested, using the addresses set forth herein
or such other address as shall be furnished in writing by the parties. This
Affiliate Agreement shall be governed by the laws of the State of Tennessee.
This Affiliate Agreement is executed as of the __ day of
_____________, 199_.
Very truly yours,
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Affiliate Signature
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Printed Name
-----------------------------------
-----------------------------------
-----------------------------------
Address
Add below the signatures of all registered owners of shares
deemed to be beneficially owned by the Affiliate.
-----------------------------------
Name:
------------------------------
-----------------------------------
Name:
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AGREED TO AND ACCEPTED as of ______________________, 1998.
UNION PLANTERS CORPORATION
By:
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Xxxxxxx X. Xxxxx
President
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