AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (hereinafter
referred to as the "AGREEMENT"), made and entered into this 8th day of April,
1998, by and among Ohio Valley Banc Corp., a bank holding company incorporated
under Ohio law (hereinafter referred to as "OVB") and Jackson Savings Bank, a
savings bank incorporated under Ohio law (hereinafter referred to as "XXXXXXX");
WITNESSETH:
WHEREAS, the authorized capital of OVB consists of 5,000,000
common shares, each without par value, 1,811,755 of which are issued and
outstanding;
WHEREAS, the authorized capital of XXXXXXX consists of 200,000
common shares, $10.00 par value per share, 18,475 of which are issued and
outstanding and held of record by approximately 60 shareholders, and 925 of
which are reserved for issuance upon exercise of outstanding stock options
(hereinafter referred to as the "XXXXXXX OPTIONS"); and
WHEREAS, the Boards of Directors of OVB and XXXXXXX believe
that the acquisition by OVB of XXXXXXX in a transaction in which a wholly owned
interim savings bank to be formed under Ohio law by OVB will merge with and into
XXXXXXX is in the best interests of each of them and their shareholders;
NOW THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, OVB and XXXXXXX, each intending
to be legally bound, hereby agree as follows:
ARTICLE ONE
THE MERGER
Section 1.01 On or before the EFFECTIVE TIME (hereinafter
defined), OVB shall incorporate an interim savings bank as a wholly owned
subsidiary in accordance with Section 1161.13 of the Ohio Revised Code
(hereinafter referred to as "INTERIM"). Immediately after such incorporation,
OVB shall cause INTERIM to agree in writing to be bound by the terms and
conditions of this AGREEMENT.
Section 1.02. In accordance with the terms and subject to the
conditions of this AGREEMENT and Chapters 1161 and 1701 of the Ohio Revised
Code, INTERIM shall merge with and into JACKSON at the EFFECTIVE TIME; XXXXXXX
shall be the continuing, surviving and resulting corporation in the merger of
INTERIM with and into XXXXXXX (hereinafter referred to as the "RESULTING
CORPORATION"); XXXXXXX shall continue to exist as a savings bank incorporated
under Ohio law; and XXXXXXX shall be the only one of XXXXXXX and INTERIM to
continue its separate corporate existence after the EFFECTIVE TIME.
Section 1.03. The name of the RESULTING CORPORATION in the
merger of INTERIM with and into XXXXXXX (hereinafter referred to as the
"MERGER") shall be "Xxxxxxx Savings Bank."
Section 1.04. The purposes for which the RESULTING CORPORATION
shall be formed shall be identical to the purposes for which XXXXXXX was formed.
Section 1.05. The capital of the RESULTING CORPORATION shall
consist of 200,000 shares, all of which shall be common shares, $10.00 par value
per share.
Section 1.06. The Amended Articles of Incorporation of
XXXXXXX, a copy of which is attached hereto as Exhibit A, shall be the Amended
Articles of Incorporation of the RESULTING CORPORATION until amended in
accordance with law.
Section 1.07. The Amended Constitution of XXXXXXX at the
EFFECTIVE TIME shall be the Amended Constitution of the RESULTING CORPORATION
until amended in accordance with law.
Section 1.08. At and after the EFFECTIVE TIME and until
changed in accordance with law, the only office of XXXXXXX at 000 Xxxx Xxxx
Xxxxxx, Xxxxxxx, Xxxx, shall be the only office of the RESULTING CORPORATION.
Section 1.09. At and after the EFFECTIVE TIME and until
changed in accordance with law, the number of directors of the RESULTING
CORPORATION shall be five, the names, residence addresses and office terms of
whom are as follows:
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NAMES RESIDENCE ADDRESS TERM EXPIRES
Xxxxxx X. Xxxx 000 Xxxx Xxxxxx Xxxxx, 0000
Xxxxxxx, XX 00000
Xxxxx X. Xxxxxx 000 Xxxxx Xxxxxx Xxxxx, 0000
Xxxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxx 00 Xxxxxxxx Xxxxx Xxxxx, 0000
Xxxxxxxxxx, XX 00000
Xxxx X. Xxxxxx 00 Xxxxx Xxxx Xxxxx, 0000
Xxxxxxx, XX 00000
Xxxxx X. Xxxxxxxxxxx 000 Xxxxx Xxxxxx Xxxxx, 0000
Xxxxxxxxxx, XX 00000
Section 1.10. At and after the EFFECTIVE TIME and until
changed in accordance with law, the following persons shall be the officers of
the RESULTING CORPORATION and shall hold the offices set forth beside their
respective names and addresses:
NAMES RESIDENCE ADDRESS OFFICE
Xxxxxx X. Xxxx 000 Xxxx Xxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Xxxxx X. Xxxxxx 000 Xxxxx Xxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Xxxxx X. Xxxxxxxxx 000 Xxxxxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Xxxxx X. Xxxxxxxx 000 Xxxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Section 1.11. Xxxxxx X. Xxxx, whose address is 000 Xxxx
Xxxxxx, Xxxxxxx, Xxxx 00000, a natural person and a resident of Xxxxxxx County,
the county in which the principal office of the RESULTING CORPORATION is to be
located, shall be the statutory agent upon whom any process, notice or demand
against XXXXXXX, INTERIM or the RESULTING CORPORATION may be served.
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Section 1.12. (a) The closing of the transactions contemplated
by this AGREEMENT (hereinafter referred to as the "CLOSING") shall take place on
a date selected by OVB within thirty (30) days after the satisfaction or waiver
of the last of the conditions set forth in Article Seven of this AGREEMENT to be
satisfied.
(b) On the day of the CLOSING, XXXXXXX and INTERIM shall cause
a Certificate of Merger in respect of the MERGER to be filed by the
Superintendent of the Division of Financial Institutions of the Ohio Department
of Commerce (hereinafter referred to as the "SUPERINTENDENT") in the Office of
the Ohio Secretary of State in accordance with Chapters 1161 and 1701 of the
Ohio Revised Code and the MERGER shall become effective at midnight on the date
of such filing (herein referred to as the "EFFECTIVE TIME").
ARTICLE TWO
CONVERSION AND CANCELLATION OF SHARES AND DEPOSITS ACCOUNTS
Section 2.01. At the EFFECTIVE TIME and as a result of the
MERGER, automatically and without further act of OVB, XXXXXXX or INTERIM or the
holders of OVB or XXXXXXX shares, the following shall occur:
(a) Each XXXXXXX common share shall be cancelled and
extinguished and, in substitution and exchange
therefor, the holders thereof shall be entitled,
subject to and upon compliance with Section 2.02 of
this AGREEMENT, to receive from OVB, a number of OVB
common shares equal to the quotient of $163.09,
divided by the average of the closing bid and asked
prices of OVB, as reported on The Nasdaq National
Market, during the twenty trading days ending five
trading days before the CLOSING and carried out to
four decimal places (hereinafter referred to as the
"AVERAGE"); provided however, that in the event of
the payment by OVB of stock dividends, stock splits
or distributions in, or combinations or subdivisions
of, OVB common shares during such twenty trading day
period, the AVERAGE shall be adjusted appropriately;
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(b) The issued and outstanding common shares of INTERIM
before the EFFECTIVE TIME shall be and constitute the
issued and outstanding common shares of the RESULTING
CORPORATION after the EFFECTIVE TIME; and
(c) The issued and outstanding common shares of OVB
before the EFFECTIVE TIME shall remain issued and
outstanding after the EFFECTIVE TIME.
Section 2.02. (a) As soon as practicable after the EFFECTIVE
TIME, OVB shall mail to each holder of record of XXXXXXX common shares a form
letter of transmittal and instructions for use in effecting the surrender for
exchange of the certificates evidencing the XXXXXXX common shares cancelled and
extinguished as a result of the MERGER (hereinafter referred to collectively as
the "CERTIFICATES" and individually as the "CERTIFICATE"). Upon surrender of a
CERTIFICATE for cancellation, together with such letter of transmittal, duly
executed, the holder of such CERTIFICATE shall be entitled to receive in
exchange therefor a certificate evidencing the OVB common shares to which the
holder is entitled in accordance with the provisions of this AGREEMENT, and the
CERTIFICATE so surrendered shall thereafter be cancelled forthwith.
(b) In the event that any holder of XXXXXXX common shares
cancelled and extinguished in accordance with this AGREEMENT is unable to
deliver the CERTIFICATE which evidences such shares of the holder, OVB, in the
absence of actual notice that any shares theretofore evidenced by any such
CERTIFICATE have been acquired by a bona fide purchaser, shall deliver to such
holder the amount to which such holder is entitled in accordance with the
provisions of this AGREEMENT upon the presentation of all of the following:
(i) Evidence to the reasonable satisfaction of
OVB that any such CERTIFICATE has been
lost, wrongfully taken or destroyed;
(ii) Such security or indemnity as may be
reasonably requested by OVB to indemnify
and hold OVB harmless; and
(iii) Evidence to the reasonable satisfaction of
OVB that such person is the owner of the
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shares theretofore represented by each
CERTIFICATE claimed by him to be lost,
wrongfully taken or destroyed and that he
is the person who would be entitled to
present each such CERTIFICATE for exchange
pursuant to this AGREEMENT.
(c) In the event that the issuance of OVB shares or payment in
lieu of fractional shares in accordance with this AGREEMENT is to be made to a
person other than the person in whose name the CERTIFICATE surrendered is
registered, the CERTIFICATE so surrendered shall be properly endorsed or
otherwise in proper form for transfer and the person requesting such issuance or
payment shall pay any transfer or other taxes required by reason of the issuance
or payment to a person other than the registered holder of the CERTIFICATE
surrendered or establish to the satisfaction of OVB that such tax has been paid
or is not applicable. Until surrendered in accordance with the provisions of
this Section 2.02, each CERTIFICATE shall represent for all purposes the right
to receive the number of OVB shares determined pursuant to this AGREEMENT.
(d) No dividends or other distributions declared after the
EFFECTIVE TIME with respect to OVB common shares and payable to the holders of
record thereof after the EFFECTIVE TIME shall be paid to the holder of any
unsurrendered CERTIFICATE until the holder thereof shall surrender such
CERTIFICATE. Subject to the effect, if any, of applicable law, after the
subsequent surrender and exchange of a CERTIFICATE, the record holder thereof
shall be entitled to receive any such dividends or other distributions, without
any interest thereon, which theretofore had become payable with respect to OVB
common shares represented by such CERTIFICATE.
(e) No certificates or scrip representing fractional shares of
OVB common shares shall be issued upon the surrender for exchange of
CERTIFICATES. No dividend or distribution with respect to OVB common shares
shall be payable on or with respect to any such fractional shares and such
fractional shares shall not entitle the owner thereof to vote or to any other
rights of a OVB shareholder. In lieu of any such fractional share, OVB shall pay
to each former holder of XXXXXXX common shares who otherwise would be entitled
to receive a fraction of a OVB common share, an amount in cash equal to the
product of the AVERAGE, multiplied by such fraction.
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Section 2.03. No OVB shares or payment in lieu of fractional
shares shall be delivered by OVB to any former holder of XXXXXXX common shares
in accordance with this AGREEMENT until any such holder shall have complied with
Section 2.02.
Section 2.04. All payments made upon the surrender of
CERTIFICATES pursuant to this Article Two shall be deemed to have been made in
full satisfaction of all rights pertaining to the shares evidenced by such
CERTIFICATES.
Section 2.05. After the EFFECTIVE TIME, there shall be no
further registration of transfer of XXXXXXX common shares on the stock transfer
books of XXXXXXX. In the event that, after the EFFECTIVE TIME, CERTIFICATES
evidencing such shares are presented for transfer, they shall be cancelled and
exchanged as provided in this Article Two.
Section 2.06. (a) Notwithstanding anything in this AGREEMENT
to the contrary, the XXXXXXX common shares which are outstanding immediately
before the EFFECTIVE TIME and which are held by shareholders who shall not have
voted such shares in favor of this AGREEMENT and who shall have delivered to OVB
or XXXXXXX a written demand for appraisal of such shares in the manner provided
in Section 1701.85 of the Ohio Revised Code shall not be converted into or be
exchangeable for the right to receive the consideration provided in this
AGREEMENT; provided, however, that (i) each of such shares (hereinafter referred
to as the "XXXXXXX DISSENTING SHARES") shall nevertheless be cancelled and
extinguished in accordance with this AGREEMENT; (ii) the holders of XXXXXXX
DISSENTING SHARES, upon compliance with the provisions of Section 1701.85 of the
Ohio Revised Code, shall be entitled to payment of the appraised value of such
shares in accordance with the provisions of Section 1701.85 of the Ohio Revised
Code; and (iii) in the event (I) any holder of XXXXXXX DISSENTING SHARES shall
subsequently withdraw his demand for appraisal of such shares with the consent
of OVB or shall fail to establish his entitlement to appraisal rights in
accordance with Section 1701.85 of the Ohio Revised Code or (II) neither the
holder or holders of XXXXXXX DISSENTING SHARES, nor OVB has filed a petition
demanding a determination of the value of all XXXXXXX DISSENTING SHARES within
the period provided in Section 1701.85 of the Ohio Revised Code, such holder or
holders shall forfeit the right to appraisal of such shares and such shares
shall thereupon be deemed to have been converted into and to have become
exchangeable for the right to receive the consideration provided in this
AGREEMENT.
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Section 2.07. At and after the EFFECTIVE TIME, the separate
existence of INTERIM shall cease; provided, however, that whenever a conveyance,
assignment, transfer, deed or other instrument or act is necessary to vest
property or rights in the RESULTING CORPORATION, the officers of XXXXXXX and
INTERIM shall execute, acknowledge and deliver such instruments and do such
acts.
Section 2.08. At and after the EFFECTIVE TIME, all of the
assets and property of every kind and character, real, personal, and mixed,
tangible and intangible, choses in action, rights and credits owned by INTERIM
and XXXXXXX at the EFFECTIVE TIME, or which would inure to any of them, shall
immediately, by operation of law and without any conveyance or transfer and
without any further act or deed, be vested in and become the property of the
RESULTING CORPORATION, which shall have, hold and enjoy the same in its own
right as fully and to the same extent as the same were possessed, held and
enjoyed by INTERIM and XXXXXXX before the MERGER. The RESULTING CORPORATION
shall be deemed to be and shall be a continuation of the entity and identity of
XXXXXXX. All of the rights and obligations of INTERIM and XXXXXXX shall remain
unimpaired and the RESULTING CORPORATION shall succeed to all of such rights and
obligations and the duties and liabilities connected therewith. Title to any
real estate or any interest therein vested in any of either INTERIM or XXXXXXX
shall not revert or in any way be impaired by reason of the MERGER. Any claim
existing, or action or proceeding pending, by or against either INTERIM or
XXXXXXX, may be prosecuted to judgment with right of appeal as if the MERGER had
not taken place or the RESULTING CORPORATION may be substituted in its place.
Section 2.09. At and after the EFFECTIVE TIME, all the rights
of creditors of each of INTERIM and XXXXXXX shall be preserved unimpaired, and
all liens upon the property of INTERIM and XXXXXXX shall be preserved unimpaired
on only the property affected by any such lien immediately before the EFFECTIVE
TIME.
Section 2.10. At and after the EFFECTIVE TIME, each XXXXXXX
savings deposit or other account then existing shall be unaffected by the
MERGER.
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ARTICLE THREE
REPRESENTATIONS AND WARRANTIES OF JACKSON
XXXXXXX represents and warrants to OVB that each of the
following is true and accurate in all material respects:
Section 3.01. JACKSON is a state savings bank duly organized,
validly existing and in good standing under the laws of Ohio; has the corporate
power and authority to own or hold under lease all of its properties and assets
and to conduct its business and operations as presently conducted; and is a
member of the Federal Home Loan Bank of Cincinnati (hereinafter referred to as
the "FHLB of Cincinnati"). The savings accounts and deposits of XXXXXXX are
insured up to applicable limits by the Federal Deposit Insurance Corporation
(hereinafter referred to as the "FDIC"). Except as set forth in Section 3.01 of
the schedule dated as of April 8, 1998, and previously delivered by XXXXXXX to
OVB (hereinafter referred to as the "DISCLOSURE SCHEDULE"), XXXXXXX is in
compliance in all material respects with all applicable local, state or federal
laws and regulations, including, without limitation, the regulations of the FDIC
and the SUPERINTENDENT.
Section 3.02. XXXXXXX is either duly qualified to do business
and in good standing in each jurisdiction in which such qualification is
required or the failure to so qualify would not have a material adverse effect
on the businesses of XXXXXXX.
Section 3.03. Subject to the adoption of this AGREEMENT by the
XXXXXXX shareholders, to the approval of the MERGER by all appropriate
regulatory authorities and to the expiration of any applicable waiting periods
required by law or regulations, (a) XXXXXXX has all requisite corporate power
and authority to enter into this AGREEMENT and to perform all of its obligations
hereunder; (b) the execution and delivery of this AGREEMENT and the consummation
of the transactions contemplated hereby have been duly authorized by all
necessary corporate action by XXXXXXX; and (c) this AGREEMENT is a valid and
binding agreement of JACKSON, enforceable against XXXXXXX in accordance with its
terms, (i) subject to applicable bankruptcy, insolvency, reorganization and
moratorium laws and other laws of general applicability affecting the
enforcement of creditors' rights generally, and the effect of rules of law
governing specific performance, injunctive relief and other equitable remedies
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on the enforceability of such documents and (ii) except to the extent such
enforceability may be limited Bylaws relating to safety and soundness of insured
depository institutions as set forth in 12 U.S.C. ss.1818(b) or by the
appointment of a conservator by the FDIC. This AGREEMENT has been duly executed
and delivered by JACKSON.
Section 3.04. XXXXXXX has made available to OVB true and
accurate copies of its Amended Articles of Incorporation, Constitution and
Bylaws and has granted OVB access to all records of all meetings and other
corporate actions by the shareholders, Board of Directors and Committees of the
Board of Directors of JACKSON. The minute books of XXXXXXX contain, in all
material respects, complete and accurate records of all meetings and other
corporate actions of its shareholders, Board of Directors and Committees of the
Board of Directors.
Section 3.05. The execution and delivery of this AGREEMENT
and, subject to the adoption of this AGREEMENT by the shareholders of XXXXXXX,
to the approval of the MERGER by all appropriate regulatory authorities and to
the expiration of any applicable waiting periods required by law or regulations,
the consummation of the transactions contemplated hereby will not (a) conflict
with or violate any provision of or result in the breach of any provision of the
Amended Articles of Incorporation, Constitution or Bylaws of XXXXXXX; (b)
conflict with or violate any provision of or result in the breach or the
acceleration of or entitle any party to accelerate (whether upon or after the
giving of notice of lapse of time or both) any obligation under, or otherwise
materially affect the terms of, any mortgage, lien, lease, agreement, license,
instrument, order, arbitration award, judgment or decree to which XXXXXXX is a
party or by which XXXXXXX or its property or assets is bound; (c) require the
consent of any party to any agreement or commitment to which XXXXXXX is a party
or by which XXXXXXX or its property or assets is bound, the failure to obtain
which could, individually or in the aggregate with all the other failures to
obtain required consents, have a material adverse effect on the business,
operations, condition (financial or otherwise) or prospects of XXXXXXX; (d)
result in the creation or imposition of any lien, charge, pledge, security
interest or other encumbrance upon any property or assets of XXXXXXX or give
rise to any meritorious cause of action against XXXXXXX; or (e) violate or
conflict with any applicable law, ordinance, rule or regulation, including,
without limitation, the rules and regulations of the FDIC or the SUPERINTENDENT.
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Section 3.06. No consent, approval, order or authorization of,
or registration, declaration or filing with, any governmental authority is
required in connection with the execution and delivery of this AGREEMENT by
XXXXXXX or the consummation by XXXXXXX of the transactions contemplated hereby,
except for filings, authorizations, consents or approvals required by the FDIC,
the Ohio Secretary of State and the SUPERINTENDENT.
Section 3.07. The authorized capital of XXXXXXX consists of
200,000 shares of common stock, $10.00 par value per share, 18,475 of which are
issued and outstanding and held of record by approximately 60 shareholders and
925 of which are reserved for issuance upon exercise of the XXXXXXX OPTIONS. All
of the outstanding common shares of XXXXXXX are duly authorized, validly issued,
fully paid and nonassessable; were issued in full compliance with all applicable
laws and regulations; and were not issued in violation of the preemptive right
of any shareholder of XXXXXXX. Upon the exercise of the XXXXXXX OPTIONS, 925
additional common shares of XXXXXXX will be duly authorized, validly issued,
fully paid and nonassessable; will be issued in full compliance with all
applicable laws and regulations; and will not be issued in violation of the
preemptive right of any shareholder of JACKSON. XXXXXXX has no outstanding class
of capital stock other than such common shares. Except for the XXXXXXX OPTIONS,
there are no outstanding subscription rights, options, conversion rights,
warrants or other agreements or commitments of any nature whatsoever (either
firm or conditional) obligating XXXXXXX to issue, deliver or sell, cause to be
issued, delivered or sold, or restricting XXXXXXX from selling any additional
JACKSON shares, or obligating XXXXXXX to grant, extend or enter into any such
agreement or commitment. The XXXXXXX OPTIONS were issued pursuant to and in
accordance with The Xxxxxxx Building, Loan and Savings Company 1992 Stock Option
and Incentive Plan and are exercisable upon the payment of $25 cash for each
common share of XXXXXXX reserved for issuance upon the exercise of the XXXXXXX
OPTIONS.
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Section 3.08. (a) The statements of financial condition as of
September 30, 1997 and 1996, of XXXXXXX and the related statements of income,
stockholders' equity and cash flows for each of the three (3) years ended
September 30, 1997, 1996 and 1995, examined and reported upon by B. Xxx Xxxxxxx
and Co., certified public accountants, complete copies of which have previously
been delivered to OVB (hereinafter referred to as the "AUDITED FINANCIALS"),
have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis and fairly present the financial position of
XXXXXXX at such dates and the results of its operations and cash flows for such
periods.
(b) The balance sheet as of March 31, 1998, of XXXXXXX and the
related income statement for the six (6) months then ended, a complete copy of
which has previously been delivered to OVB (hereinafter referred to as the
"INTERIM FINANCIALS"), fairly presents the financial position of XXXXXXX at such
date and the results of its operations for such periods and has been prepared in
accordance with generally accepted accounting principles as applicable to
condensed financial statements and as applied on a consistent basis with the
AUDITED FINANCIALS. All adjustments which are necessary for a fair statement of
the INTERIM FINANCIALS have been made.
(c) Except as disclosed in the INTERIM FINANCIALS and Section
3.08(c) of the DISCLOSURE SCHEDULE, as of March 31, 1998, XXXXXXX had no
liabilities or obligations material to the business condition (financial or
otherwise) of XXXXXXX taken as a whole, whether accrued, absolute, contingent or
otherwise, and whether due or to become due.
(d) The Call Reports of XXXXXXX for the three-month periods
ended December 31, 1997, and March 31, 1998, together with the schedules and
supplements attached thereto, each as filed with the FDIC and copies of which
were previously delivered to OVB by XXXXXXX (hereinafter referred to as the
"CALL REPORTS"), have been prepared in accordance with accounting practices
permitted by the FDIC applied on a consistent basis, are true, complete and
correct in all material respects and fairly present the financial position of
XXXXXXX at such dates.
(e) The AUDITED FINANCIALS, the INTERIM FINANCIALS and the
CALL REPORTS did not, as of the dates thereof, contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
information contained therein, in light of the circumstances under which they
were made, not misleading.
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Section 3.09. Since September 30, 1997, XXXXXXX has conducted
its business only in the ordinary and usual course, there have been no material
adverse changes in the financial condition, assets, liabilities, obligations,
properties, business or prospects of XXXXXXX and, except for the XXXXXXX OPTIONS
and as set forth in Section 3.09 of the DISCLOSURE SCHEDULE, XXXXXXX has not:
(a) Authorized the creation or issuance of or issued,
sold or disposed of, or created any obligation to
issue, sell or dispose of, any stock, notes, bonds or
other securities, or any obligation convertible into
or exchangeable for, any shares of its capital stock;
(b) Declared, set aside, paid or made any dividend or
other distributions on its capital stock or directly
or indirectly redeemed, purchased or acquired any
shares thereof or entered into any agreement in
respect of the foregoing;
(c) Effected any stock split, recapitalization,
combination, exchange of shares, readjustment or
other reclassification;
(d) Amended its Amended Articles of Incorporation,
Constitution or Bylaws;
(e) Purchased, sold, assigned or transferred any material
tangible asset or any material patent, trademark,
trade name, copyright, license, franchise, design or
other intangible asset or property;
(f) Mortgaged, pledged or granted or suffered to exist
any lien or other encumbrance or charge on any assets
or properties, tangible or intangible, except for
liens for taxes not yet due and payable and such
other liens, encumbrances or charges which do not
materially adversely affect its financial position;
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(g) Waived any rights of material value or cancelled any
material debts or claims;
(h) Incurred any material obligation or liability
(absolute or contingent), including, without
limitation, any tax liability or any liability for
borrowings from the FHLB of Cincinnati, or paid any
material liability or obligation (absolute or
contingent) other than liabilities and obligations
incurred in the ordinary course of business;
(i) Experienced any material change in the amount or
general composition of deposit liabilities;
(j) Entered into or amended any employment contract with
any of its officers, increased the compensation
payable to any officer or director or any relative of
any such officer or director, or become obligated to
increase any such compensation, adopted or amended in
any material respect any employee benefit plans,
severance plan or collective bargaining agreement or
made any awards or distributions under any employee
benefit plans not consistent with past practice or
custom;
(k) Incurred any damage, destruction or similar loss, not
covered by insurance, materially affecting its
businesses or properties;
(l) Acquired any stock or other equity interest in any
corporation, partnership, trust, joint venture or
other entity;
(m) Made any (I) material investment (except investments
made in the ordinary course of business) or (II)
material capital expenditure or commitment for any
material addition to property, plant or equipment;
(n) Taken or permitted any action which would prevent OVB
from accounting for the MERGER as a "pooling of
interests"; or
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(o) Agreed, whether in writing or otherwise, to take any
action described in this Section 3.09.
Section 3.10. (a) A brief description of all material fixed
assets owned by XXXXXXX is set forth in a schedule previously made available to
OVB (hereinafter referred to as the "PERSONAL PROPERTY"). All PERSONAL PROPERTY
has been maintained in good working order, ordinary wear and tear excepted.
XXXXXXX owns and has good title to all of the PERSONAL PROPERTY, free and clear
of any mortgage, lien, pledge, charge, claim, conditional sales or other
agreement, lease, right or encumbrance, except (i) as set forth in Section
3.10(a) of the DISCLOSURE SCHEDULE, (ii) to the extent stated or reserved
against in the AUDITED FINANCIALS or the INTERIM FINANCIALS and (iii) such other
exceptions which are not material in character, amount or extent and do not
materially detract from the value of or interfere with the use of the properties
or assets subject thereto or affected thereby.
(b) The documentation (hereinafter referred to as "LOAN
DOCUMENTATION") governing or relating to the loan and credit-related assets
(hereinafter referred to as the "LOAN ASSETS") representing the loan portfolio
of XXXXXXX is legally sufficient in all material respects for the purposes
intended thereby and creates enforceable rights of XXXXXXX in accordance with
the terms of such LOAN DOCUMENTATION, subject to applicable bankruptcy,
insolvency, reorganization and moratorium laws and other laws of general
applicability affecting the enforcement of creditors' rights generally, and the
effect of rules of law governing specific performance, injunctive relief and
other equitable remedies on the enforceability of such documents. Except as set
forth in Section 3.10(b) of the DISCLOSURE SCHEDULE, to the best knowledge of
XXXXXXX, no debtor under any of the LOAN DOCUMENTATION has asserted any claim or
defense with respect to the subject matter thereof.
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(c) A description of each parcel of real property owned by
XXXXXXX is set forth in Section 3.10(c) of the DISCLOSURE SCHEDULE (hereinafter
referred to individually as a "PARCEL" and collectively as the "REAL
PROPERTIES"). XXXXXXX is the owner of each PARCEL in fee simple and has good and
marketable title to each such PARCEL free of any liens, claims, charges,
encumbrances or security interests of any kind, except (i) as set forth in
Section 3.10(c) of the DISCLOSURE SCHEDULE, (ii) liens for real estate taxes and
assessments not yet delinquent and (iii) utility, access and other easements,
rights of way, restrictions and exceptions of record, none of which impair the
REAL PROPERTIES for the use and business being conducted thereon.
(d) Except as set forth in Section 3.10(d) of the DISCLOSURE
SCHEDULE, no party leasing any of the REAL PROPERTIES from XXXXXXX is in
material default with respect to any of its obligations (including payment
obligations) under the governing lease. XXXXXXX has not received notification
from any governmental entity within the two year period immediately preceding
the date hereof of contemplated improvements to the REAL PROPERTIES or
surrounding area or community by public authority, the costs of which are to be
assessed as special taxes against the REAL PROPERTIES in the future.
(e) A description of all real property leased by XXXXXXX is
set forth in Section 3.10(e) of the DISCLOSURE SCHEDULE (hereinafter referred to
as the "LEASED REAL PROPERTY"). True and correct copies of all leases in respect
of the LEASED REAL PROPERTY (hereinafter referred to as the "REAL PROPERTY
LEASES") and all attachments, amendments and addendums thereto have been
delivered by XXXXXXX to OVB. Except as set forth in Section 3.10(e) of the
DISCLOSURE SCHEDULE, the REAL PROPERTY LEASES create, in accordance with their
terms, valid, binding and assignable leasehold interests of XXXXXXX in all of
the LEASED REAL PROPERTY, free and clear of all liens, claims, charges,
encumbrances or security interests of any kind. XXXXXXX has complied in all
material respects with all of the provisions of the REAL PROPERTY LEASES
required on its part to be complied with and is not in default with respect to
any of its obligations (including payment obligations) under any of the REAL
PROPERTY LEASES.
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(f) A brief description of all material personal property
leased by XXXXXXX is set forth in Section 3.10(f) of the DISCLOSURE SCHEDULE
(hereinafter referred to as the "LEASED PERSONAL PROPERTY"). True and correct
copies of the leases in respect of the LEASED PERSONAL PROPERTY (hereinafter
referred to as the "PERSONAL PROPERTY LEASES") and all attachments, amendments
and addendums thereto have been delivered by XXXXXXX to OVB. Except as set forth
in Section 3.10(f) of the DISCLOSURE SCHEDULE, the PERSONAL PROPERTY LEASES
create, in accordance with their terms, valid, binding and assignable leasehold
interests of XXXXXXX in all of the LEASED PERSONAL PROPERTY, free and clear of
all liens, claims, charges, encumbrances or security interests of any kind.
XXXXXXX has complied in all material respects with all of the provisions under
the PERSONAL PROPERTY LEASES required on its part to be complied with and is not
in default with respect to any of its obligations (including payment
obligations) under any of the PERSONAL PROPERTY LEASES.
Section 3.11. Except as set forth in Section 3.11 of the
DISCLOSURE SCHEDULE, there is no loan which was made by XXXXXXX and which is
reflected as an asset of XXXXXXX on the AUDITED FINANCIALS or the INTERIM
FINANCIALS that (i) is sixty (60) days or more delinquent or (ii) has been
classified by examiners (regulatory or internal) as "Substandard," "Doubtful" or
"Loss".
Section 3.12. Section 3.12 of the DISCLOSURE SCHEDULE contains
(a) a true, accurate and complete list of all investments, other than
investments in the LOAN ASSETS and REAL PROPERTIES, owned by XXXXXXX (hereafter
referred to as the "INVESTMENTS") as of the date hereof, the name of the
registered holder thereof, the location of the certificates therefor or other
evidence thereof and any stock powers or other authority for transfer granted
with respect thereto and (b) a true, accurate and complete list of the names of
each bank or other depository in which either XXXXXXX has an account or safe
deposit box, including, without limitation, accounts with the FHLB of
Cincinnati, and the names of all persons authorized to draw thereon or to have
access thereto. Except as set forth in Section 3.12 of the DISCLOSURE SCHEDULE,
the INVESTMENTS are owned by XXXXXXX free and clear of all liens, pledges,
claims, security interests, encumbrances, charges or restrictions of any kind
and may be freely disposed of by XXXXXXX at any time. Except for shares of the
FHLB of Cincinnati and as set forth in Section 3.12 of the DISCLOSURE SCHEDULE,
XXXXXXX does not own, directly or indirectly, the outstanding shares of any
corporation or other entity. XXXXXXX is not a party to and has no interest in
any repurchase agreements or reverse repurchase agreements.
-17-
Section 3.13. XXXXXXX has filed all reports and maintained all
records required to be filed or maintained by it under various rules and
regulations of the FDIC or the SUPERINTENDENT. All such documents and reports
complied in all material respects with applicable requirements of law and
regulations in effect at the time of filing such documents and contained in all
material respects the information required to be stated therein. None of such
documents, when filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading, except to the extent that such statements or
omissions would not have a material adverse effect on XXXXXXX.
Section 3.14. Except as set forth in Section 3.14 of the
DISCLOSURE SCHEDULE, XXXXXXX has duly and timely filed all federal, state,
county and local income, profits, franchise, excise, sales, customs, property,
use, occupation, withholding, social security and other tax and information
returns and reports required to have been filed by it through the date hereof,
and has paid or accrued all taxes and duties (and all interest and penalties
with respect thereto) due or claimed to be due by XXXXXXX. XXXXXXX has no
liability for any taxes or duties (or interest or penalties with respect
thereto) of any nature whatsoever and there is no basis for any additional
material claims or assessments, other than with respect to liabilities for taxes
and duties which may have accrued since September 30, 1997, in the ordinary
course of business. The federal income tax returns of XXXXXXX for all taxable
years through and including the year ended September 30, 1993, have been
examined by the federal tax authorities or the applicable statute of limitations
has expired in respect thereof. No proposed additional taxes, interest or
penalties have been asserted by applicable taxing authorities with respect to
such years or later years, except for claims which have been fully reserved for
in the AUDITED FINANCIALS and the INTERIM FINANCIALS. True copies of the
federal, state and local income tax returns of XXXXXXX for each of the four (4)
tax years ended September 30, 1994, 1995, 1996 and 1997 have been delivered to
OVB.
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Section 3.15. (a) Except for the XXXXXXX OPTIONS and as set
forth in Section 3.15(a) of the DISCLOSURE SCHEDULE, XXXXXXX is not a party to
or bound by any written or oral (i) contract or commitment for capital
expenditures in excess of $10,000 for any one project or $15,000 in the
aggregate; (ii) contract or commitment made in the ordinary course of business
for the purchase of materials or supplies or for the performance of services
involving payments to or by XXXXXXX of an amount exceeding $15,000 in the
aggregate or extending for more than six (6) months from the date hereof; (iii)
contract or option for the purchase of any property, real or personal; (iv)
letter of credit or indemnity calling for payment, upon the conditions stated
therein, of more than $5,000; (v) guarantee agreement; (vi) instrument granting
any person authority to transact business on behalf of XXXXXXX; (vii) contracts
or commitments relating to outstanding loans and/or commitments to make loans
(including unfunded commitments and lines of credit) to any one person (together
with "affiliates" of that person) in excess of $100,000 in the aggregate; (viii)
employment, management, consulting, deferred compensation, severance or other
similar contract with any director, officer or employee of XXXXXXX; (ix) note,
debenture or loan agreement pursuant to which XXXXXXX has incurred indebtedness
other than deposit liabilities and advances from the FHLB of Cincinnati; (x)
loan participation agreement; (xi) loan servicing agreement; (xii) contract or
commitment relating to a real estate development project consisting of the
development of more than one single family dwelling; (xiii) commitment to make
any acquisition, development or construction loan; (xiv) commitment or agreement
to do any of the foregoing; or (xv) other contract, agreement or commitment made
outside the ordinary course of business (contracts set forth in Section 3.15 of
the DISCLOSURE SCHEDULE are hereinafter collectively referred to as the
"CONTRACTS"). XXXXXXX previously delivered to OVB (i) all of the CONTRACTS and
(ii) all form lending agreements and deposit forms used by XXXXXXX in the
ordinary course of business.
(b) XXXXXXX is not in material default under any of the
contracts or agreements to which it is a party and no claim of such default by
any party has been made or is now threatened. There does not exist any event
which, with notice or the passing of time or both, would constitute a material
default under, or would excuse performance by any party thereto from, any
contract or agreement to which XXXXXXX is a party.
-19-
Section 3.16. All material properties and operations of
XXXXXXX are adequately insured for their benefit. The performance by the
officers and employees of XXXXXXX of their duties is bonded in such amounts and
against such risks as are usually insured against or bonded by entities
similarly situated, under valid and enforceable policies of insurance or bonds
issued by insurers or bonding companies of recognized responsibility, financial
or otherwise.
Section 3.17. Except as set forth in Section 3.17 of the
DISCLOSURE SCHEDULE, there are no material actions, suits or proceedings or
investigations pending or threatened against or affecting the business,
operations or financial condition of XXXXXXX in any court or before any federal,
state, municipal or other governmental department, commission, board, bureau,
agency or instrumentality, and management of XXXXXXX has no knowledge of any
basis for any such action, suit, proceeding or investigation. Except as set
forth in Section 3.17 of the DISCLOSURE SCHEDULE, XXXXXXX is not in default in
respect of any judgment, order, writ, injunction or decree of any court or any
federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality.
Section 3.18. XXXXXXX has all material permits, licenses,
orders and approvals of all federal, state or local governmental or regulatory
bodies required for it to conduct its business as presently conducted, and all
such material permits, licenses, orders and approvals are in full force and
effect, without the threat of suspension or cancellation. None of such permits,
licenses, orders or approvals will be adversely affected by the consummation of
the transactions contemplated by this AGREEMENT.
Section 3.19. (a) Section 3.19 of the DISCLOSURE SCHEDULE
contains a true and complete list of all qualified pension or profit-sharing
plans, deferred compensation, consulting, bonus, group insurance plans or
agreements and all other incentive, welfare or employee benefit plans or
agreements maintained for the benefit of employees or former employees of
XXXXXXX. Copies of such plans and agreements, together with (i) the most recent
actuarial and financial reports prepared with respect to any qualified plans,
(ii) the most recent annual reports filed with any government agency and (iii)
all rulings and determination letters and any open requests for rulings or
letters that pertain to any qualified plan, have been delivered to OVB.
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(b) XXXXXXX has never established, maintained or contributed
to or otherwise participated in, or had an obligation to maintain, contribute to
or otherwise participate in, any multi-employer Plan, as defined in Section
3(37) of ERISA.
(c) XXXXXXX currently maintains a defined benefit pension plan
subject to Title IV of ERISA (hereinafter referred to as the "PENSION PLAN")
which is identified in Section 3.19 of the DISCLOSURE SCHEDULE and which is
intended to be qualified under Section 401(a) of the CODE. With respect to the
PENSION PLAN:
(i) XXXXXXX has no liability to the Pension
Benefit Guaranty Corporation (hereinafter
referred to as the "PBGC") and no liability
under either Section 502 or Section 4071 of
ERISA;
(ii) XXXXXXX has met the minimum funding
standard, and has made all contributions
required, under Section 302 of ERISA and
Section 412 of the CODE;
(iii) XXXXXXX has paid all amounts due to the
PBGC pursuant to Section 4007 of ERISA;
(iv) No event has occurred or circumstance
exists that may constitute grounds under
Section 4042 of ERISA for the termination
of, or appointment of a trustee to
administer, the PENSION PLAN;
(v) No accumulated funding deficiency, whether
or not waived, exists with respect to the
PENSION PLAN, and no event has occurred or
circumstance exists that may result in an
accumulated funding deficiency as of the
last day of the current plan year of any
such plan;
(vi) The actuarial report for the PENSION PLAN
fairly presents the financial condition and
the results of operations of such plan in
accordance with generally accepted
accounting principles;
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(vii) Since the last valuation date for the
PENSION PLAN, no event has occurred or
circumstance exists that would increase the
amount of benefits under such plan or that
would cause the excess of plan assets over
benefit liabilities (as defined in Section
4001(16) of ERISA) to decrease;
(viii) No reportable event (as defined in Section
4043 of ERISA and in regulations issued
thereunder) has occurred; and
(ix) As of the EFFECTIVE TIME, the PENSION PLAN
may be terminated and the assets of each
plan will exceed its benefit liabilities
(as defined in Section 4001(16) of ERISA).
(d) XXXXXXX maintains an employee stock ownership plan
(hereafter referred to as the "ESOP"). The ESOP is qualified under Section
401(a) of the CODE and satisfies the requirements of Section 4975(e)(7) of the
CODE. As of the EFFECTIVE TIME, the ESOP has no outstanding obligation to repay
any loan and all securities of XXXXXXX owned by the ESOP have been allocated to
the accounts of ESOP Participants.
(e) No prohibited transaction (which shall mean any
transaction prohibited by Section 406 of ERISA and not exempt under Section 408
of ERISA) has occurred with respect to any employee benefit plan (as defined in
Section 393) of ERISA) maintained by XXXXXXX (i) which would result in the
imposition, directly or indirectly, of a material excise tax under Section 4975
of the CODE or (ii) the correction of which would have a material adverse effect
on the financial condition, results of operations or business of XXXXXXX.
(f) Each employee benefit plan (as defined in Section 3(3) of
ERISA) which is sponsored or maintained by XXXXXXX is in substantial compliance
with applicable law, including, but not limited to, ERISA and the CODE.
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Section 3.20. (a) Except as set forth in Section 3.20 of the
DISCLOSURE SCHEDULE, XXXXXXX is in full compliance with all applicable
ENVIRONMENTAL LAWS (hereinafter defined). Except as set forth in Section 3.20 of
the DISCLOSURE SCHEDULE, XXXXXXX has not received any written or oral
communication, whether from a governmental authority, person, citizens group,
employee, agent, or otherwise, that alleges that XXXXXXX is not in such full
compliance with all applicable ENVIRONMENTAL LAWS or that alleges that any
properties or assets of XXXXXXX may have been affected by any MATERIALS of
ENVIRONMENTAL CONCERN (hereinafter defined) and there are no circumstances that
may prevent or interfere with such full compliance in the future. All permits
and other governmental authorizations currently held or being applied for by
XXXXXXX pursuant to the ENVIRONMENTAL LAWS are identified in Section 3.20 of the
DISCLOSURE SCHEDULE.
(b) Except as set forth in Section 3.20 of the DISCLOSURE
SCHEDULE, there is no ENVIRONMENTAL CLAIM (hereinafter defined) pending or, to
the knowledge of XXXXXXX, threatened (i) against XXXXXXX, (ii) against any
person or entity whose liability for any ENVIRONMENTAL CLAIM has or may have
been retained or assumed by XXXXXXX either contractually or by operation of law,
or (iii) against any real or personal property which XXXXXXX owns, leases or
manages, or supervises or participates in the management of, or in which XXXXXXX
holds a security interest in connection with a loan or loan participation, other
than such as would not, either individually or in the aggregate, have a material
adverse effect on XXXXXXX.
(c) Except as set forth in Section 3.20 of the DISCLOSURE
SCHEDULE, there are no past or present actions, activities, circumstances,
conditions, events or incidents, including, without limitation, the release,
emission, discharge or disposal of any MATERIAL of ENVIRONMENTAL CONCERN that
could reasonably form the basis of any ENVIRONMENTAL CLAIM against XXXXXXX or
against any person or entity whose liability for any ENVIRONMENTAL CLAIM XXXXXXX
has or may have retained or assumed either contractually or by operation of law,
other than such as would not, either individually or in the aggregate, have a
material adverse effect on XXXXXXX.
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(d) Section 3.20 of the DISCLOSURE SCHEDULE sets forth an
accurate and complete list of outstanding loans of XXXXXXX as to which the
borrower has submitted (or is required to submit) to XXXXXXX any environmental
audits, analysis or surveys of any real property securing such loan, and a brief
description of the environmental audit, analysis or survey, to the extent
applicable. XXXXXXX will make available to OVB all reports of environmental
audits, analyses and surveys referred to in this Section 3.20.
(e) As used in this Section 3.20:
(i) "ENVIRONMENTAL CLAIM" means any claim,
cause of action or notice (written or oral) by any person or entity alleging
potential liability (including, without limitation, potential liability for
investigatory costs, cleanup costs, governmental response costs, natural
resources damages, property damages, personal injuries, or penalties) arising
out of, based on or resulting from (I) the presence, or release into the
environment, of any MATERIAL of ENVIRONMENTAL CONCERN at any location, whether
or not owned by XXXXXXX or (II) circumstances forming the basis of any
violation, or alleged violation, of any ENVIRONMENTAL LAW;
(ii) "ENVIRONMENTAL LAWS" means all
federal, state, local and foreign laws and regulations relating to pollution or
protection of human health or the environment (including, without limitation,
ambient air, surface water, ground water, land surface or subsurface strata),
including, without limitation, laws and regulations relating to emissions,
discharges, releases or threatened releases of MATERIALS of ENVIRONMENTAL
CONCERN, or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of MATERIALS of
ENVIRONMENTAL CONCERN; and
(iii) "MATERIALS of ENVIRONMENTAL CONCERN"
shall mean (I) any hazardous waste as defined by the Resource Conservation and
Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.), as amended from time to
time, and regulations promulgated thereunder from time to time; (II) any
"hazardous substance" as defined by the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.), as
amended from time to time, and regulations promulgated thereunder from time to
time; (III) asbestos; (IV) PCB's; (V) any substance the presence of which on
XXXXXXX'x property is prohibited by any applicable law, ordinance, or regulation
of any federal, state, or local government or agency thereof; and (VI) any other
substance which by any governmental requirement requires special handling in its
collection, storage treatment, or disposal.
-24-
Section 3.21. XXXXXXX is in compliance with all federal, state
or other applicable laws respecting employment and employment practices, terms
and conditions of employment and wages and hours, and has not and is not engaged
in any unfair labor practice, except where such failure to comply would not
have, or such practice would not have, a material adverse effect on the
financial condition, results of operations, business or prospects of XXXXXXX. No
unfair labor practice complaint against XXXXXXX is pending before any
governmental agency or court and there is no labor strike, dispute, slowdown or
stoppage actually pending or threatened against or involving XXXXXXX. No
representation question exists in respect of the employees of XXXXXXX and no
labor grievance which might have a material adverse effect upon XXXXXXX or the
conduct of its businesses is pending or threatened. No arbitration proceeding
arising out of or under any collective bargaining agreement is pending and no
claim therefore has been asserted against XXXXXXX. No collective bargaining
agreement is currently being negotiated by XXXXXXX. XXXXXXX has not experienced
any material labor difficulty during the last three years.
Section 3.22. The certificates, statements and other
information furnished to OVB in writing by or on behalf of XXXXXXX in connection
with the transactions contemplated hereby, including, but not limited to,
disclosures and information set forth in the DISCLOSURE SCHEDULE, but excluding
statements or information pertaining to parties unrelated to XXXXXXX, do not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
Section 3.23. None of the information relating to XXXXXXX
included in any proxy statement which is to be mailed to the shareholders of
XXXXXXX in connection with any meeting of shareholders convened in accordance
with Section 6.04 of this AGREEMENT (hereinafter referred to as the "XXXXXXX
PROXY STATEMENT") will, at the time the XXXXXXX PROXY STATEMENT is mailed or at
the time of the meeting of shareholders to which the XXXXXXX PROXY STATEMENT
relates, be false or misleading with respect to any material fact, or omit to
state any material fact necessary in order to make the statements therein not
false or misleading, or at the time of the meeting of shareholders to which the
XXXXXXX PROXY STATEMENT relates, necessary to correct any statement which has
become false or misleading. The legal responsibility for the contents of the
XXXXXXX PROXY STATEMENT (other than information supplied by OVB concerning OVB)
shall be and remain with XXXXXXX.
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Section 3.24. Except for amounts payable to Xxxxxx and Company
as disclosed in Section 3.24 of the DISCLOSURE SCHEDULE, all negotiations
relating to this AGREEMENT and the transactions contemplated hereby have been
carried on without the intervention of any person acting on behalf of XXXXXXX in
such manner as to give rise to any valid claim against XXXXXXX for any broker's
or finder's fee or similar compensation.
Section 3.25. Neither XXXXXXX nor, to the knowledge of
XXXXXXX, any of its "affiliates" or "associates", as the terms "affiliates" and
"associates" are defined in ss.1704.01(C)(1) of the Ohio Revised Code, are
"beneficial owners", as the term "beneficial owners" is defined in
ss.1704.01(C)(4) of the Ohio Revised Code, of any of the outstanding shares of
any class of shares of OVB.
Section 3.26. XXXXXXX has adopted a "Year 2000 Compliance
Plan" as provided in federal regulations and guidelines and has not received
adverse comments from any federal regulator in respect thereof.
ARTICLE FOUR
REPRESENTATIONS AND WARRANTIES OF OVB
OVB represents and warrants to XXXXXXX that:
Section 4.01. OVB is a corporation duly organized, validly
existing and in good standing under the laws of Ohio and has the corporate power
and authority to conduct its business and operations as presently conducted. OVB
is registered as a holding company under the Bank Holding Company Act of 1956.
OVB and its subsidiaries are in compliance in all material respects with all
local, state and federal laws and regulations, including, without limitation the
regulations of the Board of Governors of the Federal Reserve System (hereinafter
referred to as the "FRB"), the FDIC and the SUPERINTENDENT.
-26-
Section 4.02. OVB is either duly qualified to do business and
in good standing in each jurisdiction in which such qualification is required or
the failure to so qualify would not have a material adverse effect on the
business of OVB.
Section 4.03. Subject to the adoption of this AGREEMENT and to
the approval of the MERGER by the Board of Governors of the FRB and the
SUPERINTENDENT, (a) OVB has all requisite corporate power and authority to enter
into this AGREEMENT and to perform its obligations hereunder and thereunder; (b)
the execution and delivery of this AGREEMENT and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary corporate action by OVB; and (c) this AGREEMENT is a valid and binding
agreement of OVB, enforceable against OVB in accordance with its terms, (i)
subject to applicable bankruptcy, insolvency, reorganization and moratorium laws
and other laws of general applicability affecting the enforcement of creditors'
rights generally, and the effect of rules of law governing specific performance,
injunctive relief and other equitable remedies on the enforceability of such
documents and (ii) except to the extent such enforceability may be limited
Bylaws relating to safety and soundness of insured depository institutions as
set forth in 12 U.S.C ss.1818(b) or by the appointment of a conservator by the
FDIC. This AGREEMENT has been duly executed and delivered by OVB.
Section 4.04. OVB has made available or will promptly make
available to XXXXXXX true and accurate copies of the Amended Articles of
Incorporation and Code of Regulations of OVB and has granted XXXXXXX access to
all records of all meetings and other corporate actions occurring before the
EFFECTIVE TIME by the shareholders, Board of Directors and Committees of the
Board of Directors of OVB. The minute books of OVB contain, in all material
respects, complete and accurate records of all meetings and other corporate
actions of OVB's shareholders, Board of Directors and Committees of the Board of
Directors.
Section 4.05. The execution and delivery of this AGREEMENT
and, subject to the approval of the MERGER by the FRB and the SUPERINTENDENT,
the consummation of the transactions contemplated hereby will not (a) conflict
with or violate any provision of or result in the breach of any provision of the
Amended Articles of Incorporation or Code of Regulations of OVB; (b) conflict
with or violate any provision of or result in the breach or the acceleration of
-27-
or entitle any party to accelerate (whether upon or after the giving of notice
of lapse of time or both) any obligation under, or otherwise materially affect
the terms of, any mortgage, lien, lease, agreement, license, instrument, order,
arbitration award, judgment or decree to which OVB is a party or by which OVB or
its property or assets is bound; (c) require the consent of any party to any
agreement or commitment to which OVB is a party or by which OVB or its property
or assets is bound, the failure to obtain which could, individually or in the
aggregate with all the other failures to obtain required consents, have a
material adverse effect on the business, operations, condition (financial or
otherwise) or prospects of OVB; (d) result in the creation or imposition of any
lien, charge, pledge, security interest or other encumbrance upon any property
or assets of OVB or give rise to any meritorious cause of action against OVB; or
(e) violate or conflict with any applicable law, ordinance, rule or regulation,
including, without limitation, the rules and regulations of the FRB or the
SUPERINTENDENT.
Section 4.06. No consent, approval, order or authorization of,
or registration, declaration or filing with, any governmental authority is
required in connection with the execution and delivery of this AGREEMENT by OVB
or the consummation by OVB of the transactions contemplated hereby, except for
filings, authorizations, consents or approvals required by the SEC, the FRB, the
Ohio Secretary of State and the SUPERINTENDENT.
Section 4.07. The authorized capital of OVB consists of
5,000,000 common shares, without par value, 1,811,755 of which are issued and
outstanding. All of the outstanding common shares of OVB are duly authorized,
validly issued, fully paid and nonassessable; were issued in full compliance
with all applicable laws; and were not issued in violation of the preemptive
right of any shareholder of OVB. OVB has no outstanding class of capital stock
other than such common shares. There are no outstanding subscription rights,
options, conversion rights, warrants or other agreements or commitments of any
nature whatsoever (either firm or conditional) obligating OVB to issue, deliver
or sell, cause to be issued, delivered or sold, or restricting OVB from selling
any additional OVB shares, or obligating OVB to grant, extend or enter into any
such agreement or commitment.
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Section 4.08. OVB has delivered to XXXXXXX copies of the
following documents, each of which has been filed with the SEC (hereinafter
referred to as the "SEC FILINGS"):
(a) The Annual Reports on Form 10-K for the
fiscal years ended December 31, 1997, 1996
and 1995;
(b) The Annual Reports to Shareholders for the
fiscal years ended December 31 1997, 1996
and 1995;
(c) The Proxy Statements for use in connection
with the 1998, 1997 and 1996 Annual
Meetings of Shareholders; and
(d) The Quarterly Reports on Form 10-Q for
the quarters ended March 31, 1998.
The SEC FILINGS did not, as of the dates on which such reports were filed with
the SEC, contain any untrue statement of a material fact or omit any material
fact required to be stated therein or necessary to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading.
Section 4.09. (a) The consolidated statements of financial
condition as of December 31, 1997 and 1996, of OVB and the related consolidated
statements of earnings, shareholders' equity and cash flows for each of the
three (3) years ended December 31, 1997, 1996, and 1995, examined and reported
upon by Xxxxx Xxxxxx & Company, certified public accountants, complete copies of
which have previously been delivered to XXXXXXX (hereinafter referred to as the
"OVB AUDITED FINANCIALS"), have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis and fairly present
the financial position of OVB at such dates and the results of its operations
and cash flows for such periods.
(b) The consolidated statement of financial condition as of
March 31, 1998, of OVB and the related consolidated statements of earnings,
shareholders' equity and cash flows for the three (3) months then ended,
complete copies of which have previously been delivered to XXXXXXX (hereinafter
referred to as the "OVB INTERIM FINANCIALS"), fairly present the financial
-29-
position of OVB at such date and the results of its operations and cash flows
for such period and have been prepared in accordance with generally accepted
accounting principles as applicable to condensed consolidated financial
statements and as applied on a consistent basis with the OVB AUDITED FINANCIALS.
All adjustments which are necessary for a fair statement of the OVB INTERIM
FINANCIALS have been made.
(c) Except as disclosed in the OVB INTERIM FINANCIALS, as of
March 31, 1998, OVB had no liabilities or obligations material to the business
condition (financial or otherwise) of OVB taken as a whole, whether accrued,
absolute, contingent or otherwise, and whether due or to become due.
(d) The OVB AUDITED FINANCIALS and the OVB INTERIM FINANCIALS
did not, as of the dates thereof, contain any untrue statement of a material
fact or omit to state any material fact necessary to make the information
contained therein, in light of the circumstances under which they were made, not
misleading.
Section 4.10. Except as disclosed to XXXXXXX in writing on the
date of this AGREEMENT, since December 31, 1997, OVB has conducted its business
only in the ordinary and usual course and there have been no material adverse
changes in the financial condition, assets, liabilities, obligations,
properties, business or prospects of OVB.
Section 4.11. OVB has filed all reports and maintained all
records required to be filed or maintained by it under various rules and
regulations of the SEC, FRB and the SUPERINTENDENT. All such documents and
reports complied in all material respects with applicable requirements of law
and regulations in effect at the time of the filing of such documents and
contained in all material respects the information required to be stated
therein. None of such documents, when filed, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
Section 4.12. Except as set forth in the SEC FILINGS, there
are no material actions, suits or proceedings or investigations pending or
threatened against or affecting the business, operations or financial condition
of OVB in any court or before any federal, state, municipal or other
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governmental department, commission, board, bureau, agency or instrumentality
and management of OVB has no knowledge of any basis for any such action, suit,
proceeding or investigation. Except as set forth in the SEC FILINGS, OVB is not
in default in respect of any judgment, order, writ, injunction or decree of any
court or any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality.
Section 4.13. OVB has all material permits, licenses, orders
and approvals of all federal, state or local governmental or regulatory bodies
required for OVB to conduct its business as presently conducted and all such
material permits, licenses, orders and approvals are in full force and effect,
without the threat of suspension or cancellation. None of such permits,
licenses, orders or approvals will be adversely affected by the consummation of
the transactions contemplated by this AGREEMENT.
Section 4.14. The certificates, statements and other
information furnished to XXXXXXX in writing by or on behalf of OVB in connection
with the transactions contemplated hereby, excluding statements or information
pertaining to parties unrelated to OVB, do not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
Section 4.15. All negotiations relating to this AGREEMENT and
the transactions contemplated hereby have been carried on without the
intervention of any person acting on behalf of OVB in such manner as to give
rise to any valid claim against OVB for any broker's or finder's fee or similar
compensation.
Section 4.16. OVB and its banking subsidiaries have adopted a
"Year 2000 Compliance Plan" as provided in federal regulations and guidelines
and have not received adverse comments from any regulator in respect thereof.
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ARTICLE FIVE
COVENANTS
Section 5.01. From the date of this AGREEMENT until the
EFFECTIVE TIME, XXXXXXX:
(a) Except with the prior written consent of OVB, will
conduct its business only in the ordinary course, in
accordance with past practices and policies and in
compliance with all applicable statutes, rules and
regulations;
(b) Without the prior written consent of OVB, which shall
not be unreasonably withheld, will not:
(i) Authorize the creation or issuance of or
issue, sell or dispose of, or create any
obligation to issue, sell or dispose of,
any stock, notes, bonds or other
securities of which XXXXXXX is the
issuer, or any obligations convertible
into or exchangeable for, any shares of
its capital stock, other than common
shares issued in connection with the
exercise of XXXXXXX OPTIONS;
(ii) Declare, set aside, pay or make any
dividend or other distribution on capital
stock, or, directly or indirectly,
redeem, purchase or otherwise acquire any
shares thereof or enter into any
agreement in respect to the foregoing;
provided, however, that XXXXXXX may pay a
dividend between the date of this
AGREEMENT and the EFFECTIVE TIME up to a
maximum of $35,000;
(iii) Effect any stock split, recapitalization,
combination, exchange of shares,
readjustment or other reclassification;
(iv) Amend its Amended Articles of
Incorporation or Constitution;
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(v) Purchase, sell, assign or transfer any
material tangible asset or any material
patent, trademark, trade name, copyright,
license, franchise, design or other
intangible assets or property;
(vi) Mortgage, pledge or grant or suffer to
exist any lien or other encumbrance or
charge on any assets or properties,
tangible or intangible, except for liens
for taxes not yet delinquent, assets
pledged as collateral to secure
borrowings from the FHLB of Cincinnati
and such other liens, encumbrances or
charges which do not materially or
adversely affect its financial position;
(vii) Waive any rights of material value or
cancel any material debts or claims;
(viii) Incur any material obligation or
liability (absolute or contingent),
including, without limitation, any tax
liability , or pay any material liability
or obligation (absolute or contingent),
other than liabilities and obligations
incurred in the ordinary course of
business and borrowings from the FHLB of
Cincinnati;
(ix) Cause any material adverse change in the
amount or general composition of deposit
liabilities;
(x) Enter into or amend any employment
contract with any of its officers,
increase the compensation payable to any
officer or director or any relative of
any such officer or director, or be
obligated to increase any such
compensation, adopt or amend in any
material respect any employee benefit
plans, severance plan or collective
bargaining agreement or make awards or
distributions under any employee benefit
plans not consistent with past practice
or custom;
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(xi) Acquire any stock or other equity
interest in any corporation, partnership,
trust, joint venture or other entity;
(xii) Make any (I) material investment (except
in the ordinary course of business) or
(II) material capital expenditure or
commitment for any material addition to
property, plant, or equipment; or
(xiii) Agree, whether in writing or otherwise,
to take any action described in this
Section 5.01.
Section 5.02. XXXXXXX shall not, directly or indirectly,
solicit or initiate any proposals or offers from any person or entity, or
discuss or negotiate with any such person or entity, any acquisition or purchase
of all or a material amount of the assets of, any equity securities of, or any
merger, consolidation or business combination with, XXXXXXX (hereinafter
collectively referred to as "ACQUISITION TRANSACTIONS"); provided, however, that
nothing contained in this Section 5.02 shall prohibit XXXXXXX from furnishing
information to, or entering into discussions or negotiations with, any person or
entity which makes an unsolicited inquiry or proposal of an ACQUISITION
TRANSACTION if and to the extent that (a) the Board of Directors of XXXXXXX,
after consultation with Xxxxxx and Company and counsel, reasonably determines in
good faith that such action is required to fulfill its fiduciary duties to the
shareholders of XXXXXXX under Ohio law and (b) before furnishing such
information to, or entering into discussions or negotiations with, such person
or entity, XXXXXXX provides immediate written notice to OVB of such action.
Section 5.03. Before the EFFECTIVE TIME and at the request of
OVB, XXXXXXX shall promptly establish and take such reserves and accruals to
conform XXXXXXX'x loan, accrual and reserve policies to OVB's policies; shall
promptly establish and take such accruals, reserves and charges in order to
implement such policies in respect of excess facilities and equipment capacity,
severance costs, litigation matters, write-off or write-down of various assets
and other appropriate accounting adjustments; and shall promptly recognize for
financial accounting purposes such expenses of the MERGER and restructuring
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charges related to or to be incurred in connection with the MERGER, to the
extent permitted by law and consistent with generally accepted accounting
principles and with the fiduciary duties of the officers and directors of
XXXXXXX; provided, however, that XXXXXXX shall not be obligated to make any such
changes or adjustments until the following conditions have been satisfied: (i)
each of the conditions precedent to closing specified in Section 7.01 of this
AGREEMENT and (ii) OVB shall certify to XXXXXXX in writing that, as of the date
as of which such request is being made, OVB is aware of no facts or
circumstances which would permit OVB to terminate this AGREEMENT pursuant to
Article Eight of this Agreement.
Section 5.04. XXXXXXX shall cause the holders of the XXXXXXX
OPTIONS to exercise such options before the EFFECTIVE TIME in accordance with
the terms thereof.
ARTICLE SIX
FURTHER AGREEMENTS
Section 6.01. As soon as practicable after the date of this
AGREEMENT, OVB and XXXXXXX shall submit to the FRB and the SUPERINTENDENT such
applications and documents as are required by the FRB and the SUPERINTENDENT to
be filed in connection with or related to the MERGER, including such documents
as are required to incorporate INTERIM. OVB and XXXXXXX shall use reasonable
efforts to obtain approval of such applications and documents.
Section 6.02. (a) OVB shall, as soon as reasonably
practicable, take one of the following actions:
(i) Prepare in accordance with the Securities Act of
1933, as amended (hereinafter referred to as the
"ACT"), and file with the SEC, a Registration
Statement in respect of the OVB common shares to be
issued to the holders of XXXXXXX common shares in
accordance with ARTICLE TWO of this AGREEMENT
(hereinafter referred to as the "REGISTRATION
STATEMENT"), and use all reasonable efforts to have
the REGISTRATION STATEMENT, as amended, declared
effective by the SEC as promptly as practicable;
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(ii) Prepare in accordance with Section 3(a)(10) of the
ACT and Section 1707.04 of the Ohio Revised Code, and
file with the Ohio Division of Securities
(hereinafter referred to as the "DIVISION"), the
requisite application and other documents in respect
of the MERGER (hereinafter referred to as the
"APPLICATION") and use all reasonable efforts to have
the DIVISION approve the terms and fairness of the
issuance of the OVB common shares in the MERGER.
(b) The information included in the REGISTRATION STATEMENT or
the APPLICATION in respect of OVB will not, at the time the REGISTRATION
STATEMENT or APPLICATION becomes effective, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading.
(c) Within five days before the effective date of the
REGISTRATION STATEMENT or before the hearing on the APPLICATION and within five
days before the CLOSING, XXXXXXX shall cause its certified independent
accountants to issue to OVB, a letter in form and substance satisfactory to OVB
and in relation to the audited and unaudited financial and statistical
information set forth in the REGISTRATION STATEMENT or the APPLICATION.
(d) The actions contemplated by Section 6.02(a)(ii) shall only
be undertaken if, after the EFFECTIVE TIME, the OVB shares to be issued to
former XXXXXXX shareholders pursuant to this AGREEMENT are listed on the Nasdaq
National Market and are freely tradable, subject only to the rules of the SEC on
the transfer of shares by affiliates.
(e) OVB shall list the OVB shares issued in accordance with
this AGREEMENT on the Nasdaq National Market.
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Section 6.03. (a) Within 30 days after the date of this
AGREEMENT, XXXXXXX shall identify to OVB all persons whom XXXXXXX reasonably
believes to be "affiliates," as defined in paragraphs (c) and (d) of Rule 145
under the ACT (hereinafter referred to as the "AFFILIATES"). Thereafter and
until the EFFECTIVE TIME, XXXXXXX shall identify to OVB each additional person
whom it reasonably believes to have thereafter become its AFFILIATE.
(b) XXXXXXX shall cause each person who is identified as an
AFFILIATE to deliver to OVB before the EFFECTIVE DATE a written agreement in
which such AFFILIATE confirms that the OVB common shares received by such
AFFILIATE in the MERGER shall not be transferable until the expiration of the
time period specified in Section 201.01 of the Codification of Financial
Reporting Policies of the SEC.
Section 6.04. XXXXXXX shall take all steps necessary to duly
call, give notice of, convene and hold a meeting of its shareholders for purpose
of voting upon the MERGER. XXXXXXX shall use its reasonable efforts to hold such
meeting as soon as practicable following the date of this AGREEMENT. The Board
of Directors of XXXXXXX shall (i) to the extent consistent with its fiduciary
duties, recommend to the shareholders the adoption and approval of this
AGREEMENT and the transactions contemplated hereby and the other matters to be
submitted to the shareholders in connection therewith and (ii) use its
reasonable efforts to obtain the necessary approvals by the shareholders of this
AGREEMENT, any amendments hereto, and the transactions contemplated hereby.
Section 6.05. Until the EFFECTIVE TIME, XXXXXXX shall afford
to OVB, and OVB shall afford to XXXXXXX and to its respective officers and
representatives (including, without limitation, counsel, financial advisers and
independent accountants), reasonable access to their properties, personnel,
books, records and affairs. Each party shall furnish the other party with such
additional financial and operating data and other information as to its
businesses and properties as may be reasonably requested. Such access shall
include, but shall not be limited to, (i) permitting verification, by audit or
otherwise, of any representation or warranty made hereunder; (ii) authorizing
release of any information (including the work papers of such independent
auditors) and financial consultants; (iii) consistent with applicable
regulations or procedures, furnishing regular and special examination reports
since the date of this AGREEMENT to the EFFECTIVE TIME; and (iv) delivering
copies of all documents or reports or correspondence filed and any
correspondence with any federal regulatory or supervisory agency from the date
of this AGREEMENT until the EFFECTIVE TIME.
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Section 6.06. In the event of the termination of this
AGREEMENT, XXXXXXX and OVB shall hold confidential any information obtained
hereunder which is not otherwise public knowledge or ascertainable from public
information and all non-public documents (including copies thereof) obtained
hereunder by either party from the other party shall be returned to such party.
Section 6.07. OVB and XXXXXXX shall consult with each other
before issuing any press release or otherwise making any public statements with
respect to the MERGER and shall not issue any such press release or make any
such public statement without obtaining the prior consent of the other party,
except as may be required by law or by obligations pursuant to any listing
agreement with any national securities association.
Section 6.08. Whether or not the MERGER is consummated, all
costs and expenses incurred in connection with this AGREEMENT, the XXXXXXX PROXY
STATEMENT, the REGISTRATION STATEMENT and the transactions contemplated hereby
shall be paid by the party incurring such costs and expenses; provided, however,
that in the event the Board of Directors of XXXXXXX accepts in any manner an
ACQUISITION TRANSACTION on or before December 31, 1998, XXXXXXX shall pay to OVB
$90,000 in immediately available federal funds upon the execution of any
agreement in respect of an ACQUISITION TRANSACTION.
Section 6.09. Subject to the terms and conditions herein
provided, each of the parties hereto agrees to use all reasonable efforts to
take, or cause to be taken, all action, and to do or cause to be done all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this AGREEMENT.
Section 6.10. At all times from the date of this AGREEMENT
until the EFFECTIVE TIME, each party shall promptly notify the other in writing
of any adverse business conditions threatening its normal business operations or
of the occurrence of any event or the failure of any event to occur which might
result in a breach of or a failure to comply with any representation, warranty,
covenant, condition or agreement contained in this AGREEMENT or of the
commencement of any action, suit, proceeding, or investigation against it.
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Section 6.11. (a) For a period of three years after the
EFFECTIVE TIME, OVB shall indemnify persons who served as directors and officers
of XXXXXXX on or before the EFFECTIVE TIME to the fullest extent permitted under
the Amended Articles of Incorporation and Code of Regulations of OVB and
applicable provisions of Ohio law. Any such indemnification shall be made by OVB
only as authorized in a specific case upon a determination by OVB's Board of
Directors that the applicable standard of conduct under the Amended Articles of
Incorporation and Code of Regulations of OVB and applicable provisions of Ohio
law has been met and that such indemnification is permissible under applicable
law. As a condition to receiving such indemnification, the party claiming
indemnification shall assign to OVB, by separate writing, all right, title and
interest in and to the proceeds of the claiming party's applicable insurance
coverage, if any, including insurance maintained or provided by XXXXXXX or OVB,
to the extent of such indemnity. No person shall be entitled to such
indemnification who shall (i) fail to cooperate in the defense and investigation
of any claims as to which indemnification may be made, (ii) make, or who shall
be a general partner, executive officer, director, trustee, beneficiary or
person in control of any partnership, corporation, trust or other enterprise
that shall make, any claim against XXXXXXX, OVB or any stockholder, director,
officer, employee, or agent of any thereof, in any action, suit or proceeding
arising out of or in connection with this AGREEMENT, the transactions
contemplated hereby or the conduct of the business of XXXXXXX or OVB or (iii)
fail to deliver such notices as may be required under any applicable directors
and officers liability insurance policy to preserve any possible claims of which
the claiming party is aware.
(b) OVB shall pay up to a maximum of $5,000 to obtain
directors' and officers' liability insurance for the officers and directors of
XXXXXXX to take effect at the EFFECTIVE TIME and for a period of three years
thereafter. Such insurance shall be subject to such terms and conditions as are
similar to the terms and conditions of the current directors' and officers'
liability insurance of OVB.
(c) Nothing in this AGREEMENT is intended to affect any rights
to indemnification to which any officer or director of XXXXXXX may be entitled
pursuant to law or the Amended Articles, Constitution or Bylaws of XXXXXXX.
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Section 6.12. Until the earlier of January 1, 2000, or the
effective date of any law or regulations which prohibits OVB from owning the
outstanding shares of any state savings bank, OVB shall not merge XXXXXXX with
or into any OVB subsidiary.
Section 6.13. (a) After the EFFECTIVE TIME, the employees of
XXXXXXX at the EFFECTIVE TIME shall be eligible to participate in the employee
benefit plans of OVB and its subsidiaries to the extent such plans are available
to all employees of OVB and its subsidiaries. Each such XXXXXXX employee shall
receive prior service credit for eligibility and vesting purposes under such
plans.
(b) As soon after the EFFECTIVE TIME as permitted under
Section 204(h) of ERISA, all future benefit accruals under the PENSION PLAN (as
defined in Section 3.19) shall cease; and, as of the EFFECTIVE TIME, no
additional employer contributions shall be made to the ESOP (as defined in
Section 3.19). To the extent required, XXXXXXX shall cooperate in making any
amendments to the PENSION PLAN and/or the ESOP and with providing any notices to
the employees of XXXXXXX in order to carry out the actions described in the
preceding sentence. After the EFFECTIVE TIME, OVB may, in its sole discretion,
elect to either (i) terminate the PENSION PLAN and/or ESOP; (ii) continue to
maintain the PENSION PLAN and/or ESOP as a "frozen" plan(s); or (iii) merge the
PENSION PLAN and/or ESOP into one or more employee pension benefit plans
maintained by OVB.
Section 6.14. From the date of this AGREEMENT until the
EFFECTIVE DATE, OVB will conduct its business in the ordinary course, in
accordance with past policies and practices and in compliance with all
applicable statutes, rules and regulations.
ARTICLE SEVEN
CLOSING MATTERS
Section 7.01. Notwithstanding any other provision of this
AGREEMENT, the obligations of each OVB and XXXXXXX to effect the MERGER shall be
subject to the fulfillment of each of the following conditions:
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(a) This AGREEMENT shall have been validly adopted by the
affirmative vote of the holders of at least the
number of outstanding JACKSON shares required under
Ohio law and the XXXXXXX Amended Articles of
Incorporation and Constitution to adopt such
agreements;
(b) All permits, approvals, consents, authorizations,
exemptions or waivers of any federal or state
governmental body or agency necessary or appropriate
for consummation of the MERGER shall have been
obtained;
(c) All waivers, consents and approval of every person,
in addition to those required under subsections (a)
and (b) of this Section 7.01, necessary or
appropriate for the consummation of the MERGER shall
have been obtained;
(d) XXXXXXX shall have received a written opinion of
Xxxxxx and Company dated the date of this AGREEMENT
and reasonably proximate to the date of the XXXXXXX
PROXY STATEMENT, to the effect that the AVERAGE is
fair to the holders of the XXXXXXX common shares from
a financial point of view;
(e) There shall not be in effect an order or decision of
a court of competent jurisdiction which prevents or
materially delays the consummation of the MERGER;
(f) There shall not be in effect any federal or state
law, rule or regulation which prevents or materially
delays consummation of the MERGER;
(g) OVB and XXXXXXX shall have received an opinion of
counsel to the effect that the MERGER, when
consummated in accordance with the terms hereof, will
constitute a reorganization within the meaning of
Section 368(a) of the CODE; and
(h) Either (i) the REGISTRATION STATEMENT (including any
post-effective amendment thereto) shall be effective
under the ACT and no proceeding shall be pending or,
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to the knowledge of OVB, threatened by the SEC to
suspend the effectiveness of the REGISTRATION
STATEMENT or (ii) the DIVISION shall have issued an
order in which the fairness of the terms of the
issuance of the OVB common shares in the MERGER is
approved.
Section 7.02. In addition to the conditions contained in
Section 7.01 of this AGREEMENT, the obligations of OVB to effect the MERGER
shall also be subject to the fulfillment of each of the following conditions:
(a) The representations and warranties of XXXXXXX
contained in Article Three of this AGREEMENT shall be
true in all material respects at and as of the date
hereof and at and as of the EFFECTIVE TIME as if made
at and as of such time;
(b) XXXXXXX shall have duly performed and complied in all
material respects with all agreements, covenants and
conditions required by this AGREEMENT to be performed
or complied with by XXXXXXX before or at the
EFFECTIVE TIME;
(c) There shall not have been a material adverse change
in the financial condition, assets, liabilities,
obligations, properties, business or prospects of
XXXXXXX after the date of this AGREEMENT, except
changes resulting from action taken by XXXXXXX
pursuant to Section 5.03 of this AGREEMENT and
changes resulting from or attributable to up to
$75,000 in expenses incurred in connection with the
transactions contemplated by this AGREEMENT;
(d) XXXXXXX shall have delivered to OVB a certificate
dated the EFFECTIVE TIME and signed by the President
and Treasurer of XXXXXXX to the effect set forth in
subsections (a), (b) and (c) of this Section 7.02;
(e) XXXXXXX shall have obtained all consents,
authorizations or approvals of, or exemptions or
waivers by, any federal or state governmental body or
agency required to be obtained by it in connection
with the MERGER or the taking of any action
contemplated hereby;
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(f) There shall not be any action or proceeding commenced
by or before any court or governmental agency or
authority in the United States, or threatened by any
governmental agency or authority in the United
States, that challenges or seeks to prevent or delay
the consummation of the MERGER or seeks to impose
material limitations on the ability of OVB to
exercise full rights of ownership of the assets or
business of XXXXXXX;
(g) There shall not have been proposed, nor shall there
be in effect, any federal or state law, rule,
regulation, order or statement of policy that, in the
reasonable judgment of OVB, would: (i) prevent or
delay the consummation of the MERGER or interfere
with the reasonable operation of the business of
XXXXXXX, (ii) materially adversely affect the ability
of OVB to enjoy the economic or other benefits of the
MERGER or (iii) impose any material adverse
condition, limitation or requirement on OVB in
connection with the MERGER;
(h) XXXXXXX shall not have incurred any damage,
destruction or similar loss, not covered by
insurance, materially affecting its businesses or
properties;
(i) The holders of not more than 7.5% of the XXXXXXX
common shares shall have delivered a written demand
for appraisal of such shares in the manner provided
in Section 2.06 of the AGREEMENT;
(j) The shareholders' equity of XXXXXXX on the day of the
CLOSING and as calculated in accordance with
generally accepted accounting principles shall not be
less than $2,751,288, exclusive of (i) up to $75,000
in expenses incurred by XXXXXXX in connection with
the MERGER; (ii) reserves, accruals and charges taken
or established by XXXXXXX at the request of OVB in
accordance with Section 5.03 of this AGREEMENT; and
(iii) realized or unrealized losses on securities
classified as available for sale in the AUDITED
FINANCIALS; and
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(k) All of the holders of XXXXXXX OPTIONS shall have
exercised such options before the EFFECTIVE TIME in
accordance with the terms thereof.
Section 7.03. In addition to the conditions contained in
Section 7.01 of this AGREEMENT, the obligations of XXXXXXX to effect the MERGER
shall also be subject to the fulfillment of each of the following conditions:
(a) The representations and warranties of OVB contained
in Article Four of this AGREEMENT shall be true in
all material respects at and as of the date hereof
and as of the EFFECTIVE TIME as if made at and as of
such time;
(b) OVB shall have duly performed and complied in all
material respects with all agreements, covenants and
conditions required by this AGREEMENT to be performed
or complied with by OVB before or at the EFFECTIVE
TIME;
(c) There shall not have been a material adverse change
in the financial condition, assets, liabilities,
obligations, properties, business or prospects of OVB
after the date of this AGREEMENT; and
(d) OVB shall have delivered to XXXXXXX a certificate
dated the EFFECTIVE TIME and signed by the Chairman
and the President of OVB to the effect set forth in
subsections (a), (b) and (c) of this Section 7.03.
ARTICLE EIGHT
TERMINATION
Section 8.01. This AGREEMENT may be terminated at any time
prior to the EFFECTIVE TIME, whether before or after approval by the
shareholders of OVB and XXXXXXX:
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(a) By mutual consent of the Boards of Directors of
XXXXXXX and OVB; or
(b) By the Board of Directors of XXXXXXX or OVB if:
(i) The MERGER shall not have been
consummated on or before December 31,
1998; or
(ii) Any event occurs which, in the reasonable
opinion of either Board, would preclude
satisfaction of any of the conditions set
forth in Section 7.01 of this AGREEMENT;
or
(c) By the Board of Directors of OVB if any event occurs
which, in the reasonable opinion of such Board, would
preclude compliance with any of the conditions set
forth in Section 7.02 of this AGREEMENT; or
(d) By the Board of Directors of XXXXXXX if any event
occurs which, in the reasonable opinion of such
Board, would preclude compliance with any of the
conditions set forth in Section 7.03 of this
AGREEMENT.
Section 8.02. In order to terminate this AGREEMENT pursuant to
Section 8.01, the party so acting shall give written notice of such termination
to the other party. This AGREEMENT shall terminate on the date such notice is
given.
Section 8.03. In the event of the termination of this
AGREEMENT, the provisions of this AGREEMENT shall become void and have no
effect; provided, however, that (a) the provisions set forth in Sections 6.06
and 6.08 of this AGREEMENT shall survive such termination and shall remain in
full force and effect and (b) a termination of this AGREEMENT shall not affect
the liability of any party for an uncured, material breach of any term or
condition of this AGREEMENT.
Section 8.04. This AGREEMENT may be amended by any party
hereto by action taken by its Board of Directors, at any time before or after
approval of this AGREEMENT by the shareholders of OVB and XXXXXXX, but after
such approval no amendment shall be made which materially and adversely affects
the rights of such shareholders without the further approval of such
shareholders. This AGREEMENT may not be amended except by an instrument in
writing signed on behalf of each of the parties hereto.
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Section 8.05. Any term or provision of this AGREEMENT (other
than the requirement for shareholder approval) may be waived in writing at any
time by the party which is, or whose shareholders are, entitled to the benefits
thereof.
ARTICLE NINE
MISCELLANEOUS
Section 9.01. All representations, warranties and covenants in
this AGREEMENT shall expire on, and be terminated and extinguished at, the
EFFECTIVE TIME, other than covenants which by their terms are to survive or be
performed after the EFFECTIVE TIME; provided, however, that no such
representations, warranties or covenants shall be deemed to be terminated or
extinguished so as to deprive OVB (or any director, officer or controlling
person thereof) of any defense in law or equity which otherwise would be
available against the claims of any person, including, without limitation, any
shareholder or former shareholder of either OVB.
Section 9.03. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally or mailed
by registered or certified mail (return receipt requested) to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
If addressed to OVB:
Xxxxxxx X. Xxxxx
President
Ohio Valley Banc Corp.
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
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If addressed to JACKSON:
Xxxxxx X. Xxxx
000 Xxxx Xxxxxx
Xxxxxxx, Xxxx 00000
Section 9.04. This AGREEMENT (including the exhibits,
documents and instruments referred to herein or therein) (a) constitutes the
entire agreement and supersedes all other prior agreements and understandings,
both written and oral, among the parties, or any of them, with respect to the
subject matter hereof; (b) is not intended to and shall not confer any rights or
remedies hereunder upon any person other than OVB and XXXXXXX; (c) shall not be
assigned by operation of law or otherwise; and (d) shall be governed in all
respects, including validity, interpretation and effect, by the laws of the
State of Ohio.
Section 9.05. This AGREEMENT may be executed in two or more
counterparts which together shall constitute a single AGREEMENT.
Section 9.06. The headings of articles and sections herein are
for convenience of reference only, do not constitute a part of this AGREEMENT
and shall not be deemed to limit or affect any of the provisions hereof.
Section 9.07. In the event that (a) XXXXXXX accepts an
ACQUISITION TRANSACTION and (b) XXXXXXX is not in breach of any term or
condition of this AGREEMENT, the amount paid to OVB in accordance with Section
6.08 of this AGREEMENT shall be the sole and exclusive remedy for the acceptance
by XXXXXXX of the ACQUISITION TRANSACTION.
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IN WITNESS WHEREOF, OVB and XXXXXXX have caused this AGREEMENT
to be signed by their respective duly authorized officers on the date first
above written.
Ohio Valley Banc Corp.
Attest:
/S/Xxxxxxx X. Xxxxxx By /s/Xxxxx X. Xxxxxx
--------------------------- -------------------------------
its Chairman and CEO
----------------------------
Xxxxxxx Savings Bank
Attest:
By /s/Xxxxxx X. Xxxx
--------------------------- -------------------------------
its President
----------------------------
STATE OF OHIO )
) SS:
COUNTY OF Gallia )
BE IT REMEMBERED that on this 8th day of April, 1998,
personally came before me, a Notary Public in and for the State and County
aforesaid, Xxxxx X. Xxxxxx, Chariman and CEO of Ohio Valley Banc Corp., a bank
holding company incorporated under Ohio law, and duly executed the Agreement and
Plan of Reorganization before me and acknowledged the same to be his act and
deed and the act and deed of said corporation and that the facts therein are
true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this
8th day of April, 1998.
/s/Xxxxx X. Xxxxxxxxx
--------------------------------
Notary Public
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STATE OF OHIO )
) SS:
COUNTY OF Gallia )
BE IT REMEMBERED that on this 8th day of April, 1998,
personally came before me, a Notary Public in and for the State and County
aforesaid, Xxxxxx X. Xxxx, President of The Xxxxxxx Savings Bank, a savings bank
incorporated under Ohio law, and duly executed the Agreement and Plan of
Reorganization before me and acknowledged the same to be his act and deed and
the act and deed of said corporation and that the facts therein are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this
8th day of April, 1998.
Xxxxx X. Xxxxxxxxx
--------------------------------
Notary Public
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