EXHIBIT 10.7
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of March 3, 2000, by and between
Commerce National Corporation. ("Commerce") and Wachovia Corporation
("Wachovia").
RECITALS
A. Commerce National Corporation Commerce is a Florida corporation, having
its principal place of business in Wachovia Park, Florida.
B. Wachovia Corporation. Wachovia is a North Carolina corporation, having
its principal place of business in both Winston-Salem, North Carolina and
Atlanta, Georgia.
C. Stock Option Agreement. As a condition and an inducement to the
willingness of Wachovia to enter into this Agreement, Commerce has granted to
Wachovia an option pursuant to a stock option agreement, in substantially the
form of Exhibit A (the "Stock Option Agreement").
D. Voting Agreements. As a further condition and an inducement to Wachovia's
entering into this Agreement, stockholders of Commerce who are also directors
or executive officers of Commerce holding or controlling the power to vote in
excess of 24.5% of the outstanding shares of Commerce Common Stock have entered
into agreements with Wachovia, substantially in the form of Exhibit B hereto,
under which each stockholder has agreed to vote in favor of this Agreement (the
"Voting Agreements").
E. Noncompetition Agreements. As a further condition and inducement to the
willingness of Wachovia to enter into this Agreement, the directors of Commerce
identified on Exhibit C have executed and delivered noncompetition agreements
with Wachovia in substantially the forms provided to Commerce (the "Director
Noncompetition Agreements") and Commerce has agreed to use it best efforts to
cause the officers of Commerce identified on Exhibit C to execute and deliver
noncompetition agreements with Wachovia in form and substance acceptable to
Wachovia (the "Officer Noncompetition Agreements") (collectively, the
"Noncompetition Agreements").
F. Employment Agreements. As a further condition and inducement to the
willingness of Wachovia to enter into this Agreement, Xxx X. Xxxxxx, President
and Chief Executive Officer of Commerce, has executed and delivered an
employment agreement with Wachovia substantially the form provided to Commerce
(the "Employment Agreement").
G. Intentions of the Parties. It is the intention of the parties to this
Agreement that the business combination contemplated hereby be treated as a
"reorganization" under Section 368 of the Internal Revenue Code of 1986, as
amended (the "Code").
H. Board Action. The respective Boards of Directors of each of Wachovia and
Commerce have determined that it is in the best interests of their respective
companies and their stockholders to consummate the strategic business
combination transaction provided for herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, representations, warranties and agreements contained herein the
parties agree as follows:
ARTICLE I
Certain Definitions
1.01 Certain Definitions . The following terms are used in this Agreement
with the meanings set forth below:
"Acquisition Proposal" has the meaning set forth in Section 6.06.
"Affiliate" means, with respect to any specified person, any other person
directly or indirectly controlling, controlled by or under common control with
such specified person. For the purposes of this definition, "control" when used
with respect to any specified person means the power to direct the management
and policies of such person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have correlative meanings to the foregoing.
"Agreement" means this Agreement and Plan of Merger, as amended or modified
from time to time in accordance with Section 9.02.
"Code" has the meaning set forth in Recital G.
"Commerce" has the meaning set forth in the preamble to this Agreement.
"Commerce Affiliate" has the meaning set forth in Section 6.07(a).
"Commerce Articles" means the Amended and Restated Articles of Incorporation
of Commerce.
"Commerce Benefit Plans" has the meaning set forth in Section 5.03(m).
"Commerce Board" means the Board of Directors of Commerce.
"Commerce By-Laws" means the First Amended and Restated By-laws of Commerce.
"Commerce Common Stock" means the common stock, par value $0.10 per share,
of Commerce.
"Commerce Meeting" has the meaning set forth in Section 6.02.
"Commerce Pension Plan" has the meaning set forth in Section 5.03(m).
"Commerce SEC Documents" has the meaning set forth in Section 5.03(g).
"Commerce Stock Plans" means the 1999 Commerce National Corporation
Directors' Stock Option Plan, the Stock Appreciation Rights Agreement, and the
1998 Commerce National Corporation Employees' Stock Option Plan.
"Commerce Stock Option" means any option to purchase shares under the
Commerce stock plans.
"Costs" has the meaning set forth in Section 6.12(a).
"Disclosure Schedule" has the meaning set forth in Section 5.01.
"Effective Date" has the meaning set forth in Section 2.02.
"Effective Time" has the meaning set forth in Section 2.02.
"Employment Agreement" has the meaning set forth in Recital F.
"Environmental Laws" means all applicable local, state and federal
environmental, health and safety laws and regulations, including, without
limitation, the Resource Conservation and Recovery Act, the Comprehensive
Environmental Response, Compensation, and Liability Act, the Clean Water Act,
the Federal Clean Air Act, and the Occupational Safety and Health Act, each as
amended, regulations promulgated thereunder, and state counterparts.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Affiliate" has the meaning set forth in Section 5.03(m).
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder.
"Exchange Agent" has the meaning set forth in Section 3.04.
"Exchange Fund" has the meaning set forth in Section 3.04.
"Exchange Ratio" has the meaning set forth in Section 3.01(a).
"FBCA" means the Florida Business Corporation Act.
"Governmental Authority" means any court, administrative agency or
commission or other federal, state or local governmental authority or
instrumentality.
"Indemnified Party" has the meaning set forth in Section 6.12(a).
"Insurance Amount" has the meaning set forth in Section 6.12(b).
"Insurance Policy" has the meaning set forth in Section 5.03(t).
"Lien" means any charge, mortgage, pledge, security interest, restriction,
claim, lien, or encumbrance.
"Material Adverse Effect" means, with respect to Wachovia, Commerce or the
Surviving Corporation, any effect that (i) is material and adverse to the
financial position, results of operations or business of Wachovia and its
Subsidiaries taken as a whole, Commerce and its Subsidiaries taken as a whole,
or the Surviving Corporation and its Subsidiaries taken as a whole,
respectively, or (ii) would materially impair the ability of either Wachovia
or Commerce to perform its obligations under this Agreement or otherwise
materially threaten or materially impede the consummation of the Merger and
the other transactions contemplated by this Agreement; provided, however, that
Material Adverse Effect shall not be deemed to include the impact of (a)
changes in banking and similar laws of general applicability or
interpretations thereof by courts or governmental authorities, (b) changes in
generally accepted accounting principles or regulatory accounting requirements
applicable to banks and their holding companies generally, (c) any
modifications or changes to valuation policies and practices in connection
with the Merger or restructuring charges taken in connection with the Merger,
in each case in accordance with generally accepted accounting principles,
(d) effects of any action taken with the prior written consent of Wachovia and
(e) changes in conditions or circumstances that affect the banking industry
generally.
"Merger" has the meaning set forth in Section 2.01.
"Merger Consideration" has the meaning set forth in Section 2.01.
"NCBCA" means the North Carolina Business Corporation Act.
"New Certificate" has the meaning set forth in Section 3.04.
"Noncompetition Agreements" (including "Director Noncompetition Agreements"
and "Officer Noncompetition Agreements") has the meaning set forth in Recital
E.
"NYSE" means the New York Stock Exchange, Inc.
"Old Certificate" has the meaning set forth in Section 3.04.
"Permitted Dividend Amount" has the meaning set forth in Section 4.01(c).
"Person" means any individual, bank, corporation, partnership, association,
joint-stock company, business trust or unincorporated organization.
"Previously Disclosed" by a party shall mean information set forth in its
Disclosure Schedule.
"Proxy Statement" has the meaning set forth in Section 6.03.
"Registration Statement" has the meaning set forth in Section 6.03.
"Regulatory Authority" has the meaning set forth in Section 5.03(i).
"Representatives" means, with respect to any Person, such Person's
directors, officers, employees, legal or financial advisors or any
representatives of such legal or financial advisors.
"Rights" means, with respect to any Person, securities or obligations
convertible into or exercisable or exchangeable for, or giving any person any
right to subscribe for or acquire, or any options, calls or commitments
relating to, or any stock appreciation right or other instrument the value of
which is determined in whole or in part by reference to the market price or
value of, shares of capital stock of such person.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations thereunder.
"Stock Option Agreement" has the meaning set forth in Recital C.
"Subsidiary" and "Significant Subsidiary" have the meanings ascribed to
them in Rule 1-02 of Regulation S-X of the SEC.
"Subsidiary Combination" has the meaning set forth in Section 2.04.
"Surviving Corporation" has the meaning set forth in Section 2.01.
"Takeover Laws" has the meaning set forth in Section 5.03(o).
"Tax" and "Taxes" means all federal, state, local or foreign taxes,
charges, fees, levies or other assessments, however denominated, including,
without limitation, all net income, gross income, gross receipts, gains,
sales, use, ad valorem, goods and services, capital, production, transfer,
franchise, windfall profits, license, withholding, payroll, employment,
disability, employer health, excise, estimated, severance, stamp, occupation,
property, environmental, unemployment or other taxes, custom duties, fees,
assessments or charges of any kind whatsoever, together with any interest and
any penalties, additions to tax or additional amounts imposed by any taxing
authority whether arising before, on or after the Effective Date.
"Tax Returns" means any return, amended return or other report (including
elections, declarations, disclosures, schedules, estimates and information
returns) required to be filed with respect to any Tax.
"Treasury Stock" shall mean shares of Commerce Stock held by Commerce or
any of its Subsidiaries or by Wachovia or any of its Subsidiaries, in each
case other than in a fiduciary capacity or as a result of debts previously
contracted in good faith.
"Voting Agreement" has the meaning set forth in Recital D.
"Wachovia" has the meaning set forth in the preamble to this Agreement.
"Wachovia Average Stock Price" has the meaning set forth in Section
3.01(a).
"Wachovia Bank" means Wachovia Bank, National Association.
"Wachovia Board" means the Board of Directors of Wachovia.
"Wachovia Common Stock" means the common stock, par value $5.00 per share,
of Wachovia.
"Wachovia Preferred Stock" means the preferred stock, par value $5.00 per
share, of Wachovia.
"Wachovia SEC Documents" has the meaning set forth in Section 5.04g.
"Wachovia Stock" means, collectively, Wachovia Common Stock and Wachovia
Preferred Stock.
"Y2K Compliant" means, with respect to any computer software or hardware, to
the extent such computer software or hardware has a calendar function, that it
is able to record, store, process and present calendar dates falling on or
after January 1, 2000 and date-dependent data in substantially the same manner
and with the same functionality as such software records, stores, processes and
presents such calendar dates and date-dependent data as of the date hereof.
"Y2K Plan" means a plan of reprogramming and testing for the purpose of
providing reasonable assurance that all significant computer software and
hardware developed or currently used (including third party software and
hardware necessary for the conduct of its business) by Commerce or its
Subsidiaries will be Y2K Compliant.
ARTICLE II
The Merger
2.01 The Merger. (a) At the Effective Time, Commerce shall merge with and
into Wachovia (the "Merger"), the separate corporate existence of Commerce
shall cease and Wachovia shall survive and continue to exist as a Florida
corporation (Wachovia, as the surviving corporation in the Merger, sometimes
being referred to herein as the "Surviving Corporation"). Wachovia may at any
time prior to the Effective Time change the method of effecting the combination
with Commerce (including, without limitation, the provisions of this Article
II) if and to the extent it deems such change to be necessary or appropriate;
provided, however, that no such change shall (i) alter or change the amount or
kind of consideration to be issued to holders of Commerce Stock as provided for
in this Agreement (the "Merger Consideration"), (ii) adversely affect the tax
treatment of Commerce's stockholders as a result of receiving the Merger
Consideration or (iii) materially impede or delay consummation of the
transactions contemplated by this Agreement.
(b) Subject to the satisfaction or waiver of the conditions set forth in
Article VII, the Merger shall become effective upon the occurrence of the
filing in the office of the Secretary of State of the State of Florida of
articles of merger in accordance with Section 607.1105 of the FBCA and the
filing in the office of the Secretary of State of the State of North Carolina
of articles of merger in accordance with Section 55-11-05 of the NCBCA or such
later date and time as may be set forth in such certificate or articles. The
Merger shall have the effects prescribed in the FBCA and the NCBCA.
(c) Articles of Incorporation and By-Laws. The articles of incorporation and
by-laws of Wachovia immediately after the Merger shall be those of Wachovia as
in effect immediately prior to the Effective Time.
(d) Directors and Officers of Wachovia. The directors and officers of
Wachovia immediately after the Merger shall be the directors and officers of
Wachovia immediately prior to the Effective Time, until such time as their
successors shall be duly elected and qualified.
2.02 Effective Date and Effective Time. Subject to the satisfaction or
waiver of the conditions set forth in Article VII, the parties shall cause the
effective date of the Merger (the "Effective Date") to occur on (i) the fifth
business day to occur after the last of the conditions set forth in Article VII
shall have been satisfied or waived in accordance with the terms of this
Agreement (or, at the election of Wachovia, on the last business
day of the month in which such day occurs or, if such fifth business day occurs
on one of the last five business days of such month, on the last business day
of the succeeding month) or (ii) such other date to which the parties may agree
in writing. The time on the Effective Date when the Merger shall become
effective is referred to as the "Effective Time."
2.03 Plan of Merger. Wachovia and Commerce hereby enter into a separate plan
of merger, in substantially the form of Exhibit D, for purposes of any filing
requirement.
2.04 Integration. Upon or following the Effective Time, the parties hereto
currently intend to effectuate, or cause to be effectuated, the combination
(the "Subsidiary Combination") of the business of the National Bank of Commerce
with that of Wachovia Bank. Commerce agrees to cooperate with Wachovia and to
take all reasonable actions prior to or following the Effective Time, including
executing all requisite documentation, as may be requested by Wachovia to
effect the Subsidiary Combination. Commerce also agrees to cooperate with
Wachovia and to take all reasonable restructuring steps for regulatory
purposes, as may be requested by Wachovia to merge or otherwise consolidate
such legal entities to the extent desirable for regulatory or other reasons.
ARTICLE III
Consideration; Exchange Procedures
3.01 Merger Consideration. Subject to the provisions of this Agreement, at
the Effective Time, automatically by virtue of the Merger and without any
action on the part of any Person:
(a) Outstanding Commerce Common Stock. Each share, excluding Treasury
Stock, of Commerce Common Stock, issued and outstanding immediately prior
to the Effective Time shall become and be converted into the number of
shares of Wachovia Common Stock equal to the Exchange Ratio (as defined in
the following sentence). The "Exchange Ratio" shall mean the number equal
to $54.00 divided by the Wachovia Average Stock Price (rounded to the
nearest one-thousandth) provided that:
(i) if the Wachovia Average Stock Price exceeds $64.125, the
Exchange Ratio shall be .8421; and
(ii) if the Wachovia Average Stock Price is less than $51.30, the
Exchange Ratio shall be 1.0526.
The "Wachovia Average Stock Price" shall be the closing price of Wachovia
Common Stock, as reported by the NYSE Composite Transaction Reporting
System (as reported in The Wall Street Journal or, if not reported therein,
in another authoritative source), for the 15 NYSE trading days immediately
preceding the Effective Date.
(b) Outstanding Wachovia Stock. Each share of Wachovia Stock issued and
outstanding immediately prior to the Effective Time shall remain issued and
outstanding and unaffected by the Merger.
(c) Treasury Stock and Commerce Preferred Stock. Each share of Commerce
Common Stock held as Treasury Stock immediately prior to the Effective Time
shall be canceled and retired at the Effective Time and no consideration
shall be issued in exchange therefor.
3.02 Rights as Stockholders; Stock Transfers. At the Effective Time, holders
of Commerce Common Stock shall cease to be, and shall have no rights as,
stockholders of Commerce, other than to receive any dividend or other
distribution with respect to such Commerce Common Stock with a record date
occurring prior to the Effective Time and the consideration provided under this
Article III. After the Effective Time, there shall be no transfers of shares of
Commerce Common Stock on the stock transfer books of Commerce or the Surviving
Corporation.
3.03 Fractional Shares. Notwithstanding any other provision hereof, no
fractional shares of Wachovia Common Stock and no certificates or scrip
therefor, or other evidence of ownership thereof, will be issued in the Merger;
instead, Wachovia shall pay to each holder of Commerce Common Stock who would
otherwise be entitled to a fractional share of Wachovia Common Stock (after
taking into account all Old Certificates delivered by such holder) an amount in
cash (without interest) determined by multiplying such fraction by the closing
price of Wachovia Common Stock, as reported by the NYSE Composite Transactions
Reporting System (as reported in The Wall Street Journal or, if not reported
therein, in another authoritative source), for the NYSE trading day immediately
preceding the Effective Date.
3.04 Exchange Procedures. (a) At or prior to the Effective Time, Wachovia
shall deposit, or shall cause to be deposited, with EquiServe Trust Company,
N.A. (in such capacity, the "Exchange Agent"), for the benefit of the holders
of certificates formerly representing shares of Commerce Common Stock ("Old
Certificates"), for exchange in accordance with this Article III, certificates
representing the shares of Wachovia Common Stock ("New Certificates") and an
estimated amount of cash (such cash and New Certificates, together with any
dividends or distributions with a record date occurring after the Effective
Date with respect thereto (without any interest on any such cash, dividends or
distributions), being hereinafter referred to as the "Exchange Fund") to be
paid pursuant to this Article III in exchange for outstanding shares of
Commerce Common Stock.
(b) As promptly as practicable after the Effective Date, Wachovia shall send
or cause to be sent to each former holder of record of shares of Commerce
Common Stock immediately prior to the Effective Time transmittal materials for
use in exchanging such stockholder's Old Certificates for the consideration set
forth in this Article III. Wachovia shall cause the New Certificates into which
shares of a stockholder's Commerce Common Stock are converted on the Effective
Date and/or any check in respect of any fractional share interests or dividends
or distributions which such person shall be entitled to receive to be delivered
to such stockholder upon delivery to the Exchange Agent of Old Certificates
representing such shares of Commerce Common Stock (or indemnity reasonably
satisfactory to Wachovia and the Exchange Agent, if any of such certificates
are lost, stolen or destroyed) owned by such stockholder. No interest will be
paid on any such cash to be paid in lieu of fractional share interests or in
respect of dividends or distributions, which any such person shall be entitled
to receive pursuant to this Article III upon such delivery. Old Certificates
surrendered for exchange by any Commerce Affiliate shall not be exchanged for
New Certificates until Wachovia has received a written agreement from such
person as specified in Section 6.07.
(c) Notwithstanding the foregoing, neither the Exchange Agent nor any party
hereto shall be liable to any former holder of Commerce Stock for any amount
properly delivered to a public official pursuant to applicable abandoned
property, escheat or similar laws.
(d) At the election of Wachovia, no dividends or other distributions with
respect to Wachovia Common Stock with a record date occurring after the
Effective Time shall be paid to the holder of any unsurrendered Old Certificate
representing shares of Commerce Common Stock converted in the Merger into the
right to receive shares of such Wachovia Common Stock until the holder thereof
shall be entitled to receive New Certificates in exchange therefor in
accordance with the procedures set forth in this Section 3.04, and no such
shares of Commerce Common Stock shall be eligible to vote until the holder of
Old Certificates is entitled to receive New Certificates in accordance with the
procedures set forth in this Section 3.04. After becoming so entitled in
accordance with this Section 3.04, the record holder thereof also shall be
entitled to receive any such dividends or other distributions, without any
interest thereon, which theretofore had become payable with respect to shares
of Wachovia Common Stock such holder had the right to receive upon surrender of
the Old Certificate.
(e) Any portion of the Exchange Fund that remains unclaimed by the
stockholders of Commerce for twelve months after the Effective Time shall be
paid to Wachovia. Any stockholders of Commerce who have not theretofore
complied with this Article III shall thereafter look only to Wachovia for
payment of
the shares of Wachovia Common Stock, cash in lieu of any fractional shares
and unpaid dividends and distributions on Wachovia Common Stock deliverable
in respect of each share of Commerce Common Stock such stockholder holds as
determined pursuant to this Agreement, in each case, without any interest
thereon and Wachovia shall make such payment.
3.05 Anti-Dilution Provisions. In the event Wachovia changes (or establishes
a record date for changing) the number of shares of Wachovia Common Stock
issued and outstanding prior to the Effective Date as a result of a stock
split, stock dividend, recapitalization or similar transaction with respect to
the outstanding Wachovia Common Stock and the record date therefor shall be
prior to the Effective Date, the Exchange Ratio shall be proportionately
adjusted.
3.06 Options. At the Effective Time, each outstanding Commerce Stock Option,
whether vested or unvested, shall be converted into an option to acquire, on
the same terms and conditions as were applicable under such Commerce Stock
Option, the number of shares of Wachovia Common Stock equal to (a) the number
of shares of Commerce Common Stock subject to the Commerce Stock Option,
multiplied by (b) the Exchange Ratio (such product rounded down to the nearest
whole number) (a "Replacement Option"), at an exercise price per share (rounded
up to the nearest whole cent) equal to (y) the aggregate exercise price for the
shares of Commerce Common Stock which were purchasable pursuant to such
Commerce Stock Option divided by (z) the number of full shares of Wachovia
Common Stock subject to such Replacement Option in accordance with the
foregoing. Notwithstanding the foregoing, each Commerce Stock Option which is
intended to be an "incentive stock option" (as defined in Section 422 of the
Code) shall be adjusted in accordance with the requirements of Section 424 of
the Code. At or prior to the Effective Time, Commerce shall take all action, if
any, necessary with respect to the Commerce Stock Plans to permit the
replacement of the outstanding Commerce Stock Options by Wachovia pursuant to
this Section. At the Effective Time, Wachovia shall assume the Commerce Stock
Plans; provided, that such assumption shall be only in respect of the
Replacement Options and that Wachovia shall have no obligation with respect to
any awards under the Commerce Stock Plans other than the Replacement Options
and shall have no obligation to make any additional grants or awards under such
assumed Commerce Stock Plans.
ARTICLE IV
Actions Pending Acquisition
4.01 Forbearances of Commerce. From the date hereof until the Effective
Time, except as expressly contemplated by this Agreement, without the prior
written consent of Wachovia, Commerce will not, and will cause each of its
Subsidiaries not to:
(a) Ordinary Course. Conduct the business of Commerce and its
Subsidiaries other than in the ordinary and usual course or fail to use
reasonable efforts to preserve intact their business organizations and
assets and maintain their rights, franchises and existing relations with
customers, suppliers, employees and business associates, or take any action
reasonably likely to have a Material Adverse Effect with respect to
Commerce.
(b) Capital Stock. (1) Issue, sell or otherwise permit to become
outstanding, or authorize the creation of, any additional shares of
Commerce Common Stock or other equity stock of Commerce or any Rights, (2)
enter into any agreement with respect to the foregoing, or (3) permit any
additional shares of Commerce Common Stock to become subject to new grants
of employee or director stock options, other Rights or similar stock-based
employee rights.
(c) Dividends, Etc. (1) Make, declare, pay or set aside for payment any
dividend (other than (A) an annual cash dividend on Commerce Common Stock
in an amount equal to $0.15 per share (the "Permitted Dividend Amount") and
paid on Xxxxx 0, 0000 (X) dividends from wholly owned Subsidiaries to
Commerce or another wholly owned Subsidiary of Commerce) on or in respect
of, or declare or make any distribution on any shares of Commerce Common
Stock or any Subsidiary's capital
stock or (2) directly or indirectly adjust, split, combine, redeem,
reclassify, purchase or otherwise acquire, any shares of its capital stock;
provided, however, that if the Merger is not consummated by the record date
for Wachovia's dividend payable during the third quarter of 2000, then the
Permitted Dividend Amount may be increase by Commerce at its option for all
future dividends to $0.51 per share.
(d) Compensation; Employment Agreements; Etc. Enter into or amend or
renew any employment, consulting, severance or similar agreements or
arrangements with any director, officer, employee or consultant of Commerce
or its Subsidiaries, or grant any salary or wage increase or increase any
employee benefit (including incentive or bonus payments), except (i) for
normal individual increases in compensation to employees in the ordinary
course of business consistent with past practice, (ii) for other changes
that are required by applicable law, (iii) to satisfy Previously Disclosed
contractual obligations existing as of the date hereof, (iv) as expressly
provided on Section 4.01(d) of the Commerce Disclosure Schedule, or (v) for
grants of awards to newly hired employees consistent with past practice.
(e) Benefit Plans. Enter into, establish, adopt or amend (except (i) as
may be required by applicable law or (ii) to satisfy Previously Disclosed
contractual obligations existing as of the date hereof) any pension,
retirement, stock option, stock purchase, savings, profit sharing, deferred
compensation, consulting, bonus, severance, group insurance or other
employee benefit, incentive or welfare contract, plan or arrangement, or
any trust agreement (or similar arrangement) related thereto, in respect of
any director, officer, employee or consultant of Commerce or its
Subsidiaries, or take any action to accelerate the vesting or
exercisability of stock options, restricted stock or other compensation or
benefits payable thereunder.
(f) Dispositions. Except as Previously Disclosed, sell, transfer,
mortgage, encumber or otherwise dispose of or discontinue any of its
assets, deposits, business or properties except in the ordinary course of
business and in a transaction that is not material to Commerce and its
Subsidiaries taken as a whole.
(g) Acquisitions. Except as Previously Disclosed, acquire (other than by
way of foreclosures or acquisitions of control in a bona fide fiduciary
capacity or in satisfaction of debts previously contracted in good faith,
in each case in the ordinary and usual course of business consistent with
past practice) all or any portion of, the assets, business, deposits or
properties of any other entity except in the ordinary course of business
and in a transaction that is not material to Commerce and its Subsidiaries
taken as a whole.
(h) Governing Documents. Amend the Commerce Articles, Commerce By-laws
or the certificate of incorporation or by-laws (or similar governing
documents) of any of Commerce's Subsidiaries.
(i) Accounting Methods. Implement or adopt any change in its accounting
principles, practices or methods, other than as may be required by
generally accepted accounting principles.
(j) Contracts. Except in the ordinary course of business consistent with
past practice, enter into or terminate any material contract (as defined in
Section 5.03(k)) or amend or modify in any material respect any of its
existing material contracts.
(k) Claims. Except in the ordinary course of business consistent with
past practice, settle any claim, action or proceeding, except for any
claim, action or proceeding involving solely money damages in an amount,
individually or in the aggregate for all such settlements, that is not
material to Commerce and its Subsidiaries, taken as a whole and that does
not involve or create precedent for claims, actions or proceedings that are
reasonably likely to be material to Commerce and its Subsidiaries, taken as
a whole.
(l) Adverse Actions. (i) Take any action which would materially
adversely affect its ability to consummate the Merger; (ii) take any action
reasonably likely to prevent or impede the Merger from qualifying as a
reorganization within the meaning of Section 368 of the Code; or (iii)
knowingly take any action that is intended or is reasonably likely to
result in (A) any of its representations and warranties set forth in this
Agreement being or becoming untrue in any material respect at any time at
or prior to the Effective Time, (B) any of the conditions to the Merger set
forth in Article VII not being satisfied or (C) a
material violation of any provision of this Agreement except, in each case,
as may be required by applicable law or regulation.
(m) Risk Management. Except as required by applicable law or regulation,
(i) implement or adopt any material change in its interest rate and other
risk management policies, procedures or practices; (ii) fail to follow its
existing policies or practices with respect to managing its exposure to
interest rate and other risk; or (iii) fail to use commercially reasonable
means to avoid any material increase in its aggregate exposure to interest
rate risk.
(n) Indebtedness. Incur any indebtedness for borrowed money other than
in the ordinary course of business consistent with past practice.
(o) Tax Matters. Make or change any material tax election, change any
annual tax accounting period, adopt or change any method of tax accounting,
file any amended Tax Return, enter into any material closing agreement,
settle any material Tax claim or assessment, surrender or compromise any
right to claim a material Tax refund, consent to any extension or waiver of
the limitations period applicable to any material Tax claim or assessment,
in each case, other than any of the foregoing actions that are not material
and which are taken in the ordinary and usual course of business consistent
with past practice.
(p) Commitments. Agree or commit to do any of the foregoing.
4.02 Forbearances of Wachovia. From the date hereof until the Effective
Time, except as expressly contemplated by this Agreement, without the prior
written consent of Commerce, Wachovia will not, and will cause each of its
Subsidiaries not to:
(a) Extraordinary Dividends. Make, declare, pay or set aside for payment
any extraordinary dividend.
(b) Adverse Actions. (i) Take any action reasonably likely to prevent or
impede the Merger from qualifying as a reorganization within the meaning of
Section 368 of the Code; or (ii) knowingly take any action that is intended
or is reasonably likely to result in (A) any of its representations and
warranties set forth in this Agreement being or becoming untrue in any
material respect at any time at or prior to the Effective Time, (B) any of
the conditions to the Merger set forth in Article VII not being satisfied;
or (C) a material violation of any provision of this Agreement except, in
each case, as may be required by applicable law or regulation.
ARTICLE V
Representations and Warranties
5.01 Disclosure Schedules. On or prior to the date hereof, Wachovia has
delivered to Commerce a schedule and Commerce has delivered to Wachovia a
schedule (respectively, its "Disclosure Schedule") setting forth, among other
things, items the disclosure of which is necessary or appropriate either in
response to an express disclosure requirement contained in a provision hereof
or as an exception to one or more representations or warranties contained in
Section 5.03 or 5.04 or to one or more of its covenants contained in Article
IV; provided, that (a) no such item is required to be set forth in a Disclosure
Schedule as an exception to a representation or warranty if its absence would
not be reasonably likely to result in the related representation or warranty
being deemed untrue or incorrect under the standard established by Section
5.02, and (b) the mere inclusion of an item in a Disclosure Schedule as an
exception to a representation or warranty shall not be deemed an admission by a
party that such item represents a material exception or fact, event or
circumstance or that such item is reasonably likely to result in a Material
Adverse Effect.
5.02 Standard. No representation or warranty of Commerce or Wachovia
contained in Section 5.03 or 5.04 shall be deemed untrue or incorrect, and no
party hereto shall be deemed to have breached a
representation or warranty, as a consequence of the existence of any fact,
event or circumstance unless such fact, circumstance or event, individually or
taken together with all other facts, events or circumstances inconsistent with
any representation or warranty contained in Section 5.03 or 5.04 has had or is
reasonably likely to have a Material Adverse Effect.
5.03 Representations and Warranties of Commerce. Subject to Sections 5.01
and 5.02 and except as Previously Disclosed in a paragraph of its Disclosure
Schedule corresponding to the relevant paragraph below, Commerce hereby
represents and warrants to Wachovia:
(a) Organization, Standing and Authority. (i) Commerce is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Florida. (ii) Commerce is duly qualified to do business and is in
good standing in the states of the United States and any foreign
jurisdictions where its ownership or leasing of property or assets or the
conduct of its business requires it to be so qualified.
(b) Commerce Stock. As of the date hereof, the authorized capital stock
of Commerce consists solely of 1,000,000 shares of Commerce Common Stock,
of which 721,019 shares were outstanding as of the date hereof. As of the
date hereof, 21,800 shares of Commerce Common Stock were held in treasury
by Commerce or otherwise owned by Commerce or its Subsidiaries. The
outstanding shares of Commerce Stock have been duly authorized and are
validly issued and outstanding, fully paid and nonassessable, and subject
to no preemptive rights (and were not issued in violation of any preemptive
rights). As of the date hereof, except as Previously Disclosed in its
Disclosure Schedule, there are no shares of Commerce Stock authorized and
reserved for issuance, Commerce does not have any Rights issued or
outstanding with respect to Commerce Stock, and Commerce does not have any
commitment to authorize, issue or sell any Commerce Stock or Rights, except
pursuant to this Agreement and the Stock Option Agreement.
(c) Subsidiaries. (i)(A) Commerce has Previously Disclosed a list of all
of its Subsidiaries together with the jurisdiction of organization of each
such Subsidiary, (B) except as Previously Disclosed, it owns, directly or
indirectly, all the issued and outstanding equity securities of each of its
Subsidiaries, (C) no equity securities of any of its Subsidiaries are or
may become required to be issued (other than to it or its wholly-owned
Subsidiaries) by reason of any Right or otherwise, (D) there are no
contracts, commitments, understandings or arrangements by which any of such
Subsidiaries is or may be bound to sell or otherwise transfer any equity
securities of any such Subsidiaries (other than to it or its wholly-owned
Subsidiaries), (E) there are no contracts, commitments, understandings, or
arrangements relating to its rights to vote or to dispose of such
securities and (F) all the equity securities of each Subsidiary held by
Commerce or its Subsidiaries are fully paid and nonassessable (except
pursuant to 12 U.S.C. (S)55) and are owned by Commerce or its Subsidiaries
free and clear of any Liens.
(ii) Commerce does not own beneficially, directly or indirectly, any
equity securities or similar interests of any Person, or any interest in a
partnership or joint venture of any kind, other than its Subsidiaries.
(iii) Each of Commerce's Subsidiaries (A) has been duly organized and is
validly existing in good standing under the laws of the jurisdiction of its
organization, and (B) is duly qualified to do business and in good standing
in the jurisdictions where its ownership or leasing of property or the
conduct of its business requires it to be so qualified.
(d) Corporate Power. Commerce and each of its Subsidiaries has the
corporate power and authority to carry on its business as it is now being
conducted and to own all its properties and assets; and Commerce has the
corporate power and authority to execute, deliver and perform its
obligations under this Agreement and the Stock Option Agreement and to
consummate the transactions contemplated hereby and thereby.
(e) Corporate Authority. Subject in the case of this Agreement to
receipt of the requisite approval of the agreement of merger set forth in
this Agreement by the holders of a majority of the outstanding shares of
Commerce Common Stock entitled to vote thereon (which is the only
shareholder vote required thereon), this Agreement, the Stock Option
Agreement and the transactions contemplated hereby and
thereby have been authorized by all necessary corporate action of Commerce
and the Commerce Board prior to the date hereof. This Agreement is a valid
and legally binding obligation of Commerce, enforceable in accordance with
its terms (except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
similar laws of general applicability relating to or affecting creditors'
rights or by general equity principles). The Commerce Board has received
the written opinion of Austin Associates, Inc. to the effect that as of the
date hereof the Exchange Ratio is fair, from a financial point of view, to
the holders of Commerce Common Stock.
(f) Regulatory Filings; No Defaults. (i) No consents or approvals of, or
filings or registrations with, any Governmental Authority or with any third
party are required to be made or obtained by Commerce or any of its
Subsidiaries in connection with the execution, delivery or performance by
Commerce of this Agreement or the Stock Option Agreement or to consummate
the Merger except for (A) the filing of a notice under the Xxxx-Xxxxx-
Xxxxxx Antitrust Improvements Act of 0000 (xxx "XXX Xxx"), (X) filings of
applications or notices with federal and state banking authorities, (C)
filings with the SEC and state securities authorities, and (D) the filing
of articles of merger with the Secretary of State of the State of Florida
pursuant to the FBCA and the Secretary of State of the State of North
Carolina pursuant to the NCBCA. As of the date hereof, Commerce is not
aware of any reason why the approvals set forth in Section 7.01(b) will not
be received without the imposition of a condition, restriction or
requirement of the type described in Section 7.01(b).
(ii) Subject to receipt of the regulatory approvals referred to in the
preceding paragraph, and expiration of related waiting periods, and
required filings under federal and state securities laws, the execution,
delivery and performance of this Agreement and the Stock Option Agreement
and the consummation of the transactions contemplated hereby and thereby do
not and will not (A) constitute a breach or violation of, or a default
under, or give rise to any Lien, any acceleration of remedies or any right
of termination under, any law, rule or regulation or any judgment, decree,
order, governmental permit or license, or contract, agreement, indenture or
instrument of Commerce or of any of its Subsidiaries or to which Commerce
or any of its Subsidiaries or properties is subject or bound, (B)
constitute a breach or violation of, or a default under, the Commerce
Certificate or the Commerce By-Laws, or (C) require any consent or approval
under any such law, rule, regulation, judgment, decree, order, governmental
permit or license, contract, agreement, indenture or instrument.
(g) Financial Reports; No Material Adverse Effect. (i) Commerce's Annual
Report on Form 10-K for the fiscal year ended December 31, 1998, and all
other reports, registration statements, definitive proxy statements or
information statements filed or to be filed by it or any of its
Subsidiaries subsequent to December 31, 1998 under the Securities Act, or
under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, in the form
filed or to be filed with the SEC (collectively, "Commerce's SEC
Documents"), as of the date filed, (A) complied or will comply in all
material respects as to form with the applicable requirements under the
Securities Act or the Exchange Act, as the case may be, and (B) did not and
will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and each of the balance sheets contained in or
incorporated by reference into any such SEC Document (including the related
notes and schedules thereto) fairly presents, or will fairly present, the
financial position of Commerce and its Subsidiaries as of its date, and
each of the statements of income and changes in stockholders' equity and
cash flows or equivalent statements contained in any such SEC Document
(including any related notes and schedules thereto) fairly presents, or
will fairly present, the results of operations, changes in stockholders'
equity and changes in cash flows, as the case may be, of Commerce and its
Subsidiaries for the periods to which they relate, in each case in
accordance with generally accepted accounting principles consistently
applied during the periods involved, except in each case as may be noted
therein, subject to normal year-end audit adjustments in the case of
unaudited statements.
(ii) Since December 31, 1998, Commerce and its Subsidiaries have not
incurred any liability other than in the ordinary course of business
consistent with past practice.
(iii) Since December 31, 1998, (A) Commerce and its Subsidiaries have
conducted their respective businesses in the ordinary and usual course
consistent with past practice (excluding the incurrence of expenses related
to this Agreement and the transactions contemplated hereby) and (B) no
event has occurred or circumstance arisen that, individually or taken
together with all other facts, circumstances and events (described in any
paragraph of Section 5.03 or otherwise), is reasonably likely to have a
Material Adverse Effect with respect to Commerce.
(h) Litigation. (i) Commerce has Previously Disclosed its true and
complete list, as of the date hereof, of all litigation, claims or other
proceedings before any court or governmental agency pending (or, to
Commerce's knowledge, threatened) against Commerce or any of its
subsidiaries. (ii) No other litigation, claim or other proceeding before
any court or governmental agency is pending against Commerce or any of its
Subsidiaries and, to Commerce's knowledge, no other such litigation, claim
or other proceeding has been threatened.
(i) Regulatory Matters. (i) Neither Commerce nor any of its Subsidiaries
or properties is a party to or is subject to any order, decree, agreement,
memorandum of understanding or similar arrangement with, or a commitment
letter or similar submission to, or extraordinary supervisory letter from,
any federal or state governmental agency or authority charged with the
supervision or regulation of financial institutions or issuers of
securities or engaged in the insurance of deposits (including, without
limitation, the Federal Reserve Board and the FDIC) or the supervision or
regulation of it or any of its Subsidiaries (each, a "Regulatory
Authority").
(ii) Neither it nor any of its Subsidiaries has been advised by any
Regulatory Authority that such Regulatory Authority is contemplating
issuing or requesting (or is considering the appropriateness of issuing or
requesting) any such order, decree, agreement, memorandum of understanding,
commitment letter, supervisory letter or similar submission.
(j) Compliance with Laws. Commerce and each of its Subsidiaries:
(i) is in compliance with all applicable federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments,
orders or decrees applicable thereto or to the employees conducting
such businesses, including, without limitation, the Equal Credit
Opportunity Act, the Fair Housing Act, the Community Reinvestment Act,
the Home Mortgage Disclosure Act and all other applicable fair lending
laws and other laws relating to discriminatory business practices;
(ii) has all permits, licenses, authorizations, orders and approvals
of, and has made all filings, applications and registrations with, all
Governmental Authorities that are required in order to permit them to
own or lease their properties and to conduct their businesses as
presently conducted; all such permits, licenses, certificates of
authority, orders and approvals are in full force and effect and, to
Commerce's knowledge, no suspension or cancellation of any of them is
threatened; and
(iii) has received, since December 31, 1998, no notification or
communication from any Governmental Authority (A) asserting that
Commerce or any of its Subsidiaries is not in compliance with any of
the statutes, regulations, or ordinances which such Governmental
Authority enforces or (B) threatening to revoke any license, franchise,
permit, or governmental authorization (nor, to Commerce's knowledge, do
any grounds for any of the foregoing exist).
(k) Material Contracts; Defaults. Except for those agreements and other
documents filed as exhibits to its SEC Documents, neither it nor any of its
Subsidiaries is a party to, bound by or subject to any agreement, contract,
arrangement, commitment or understanding (whether written or oral) (i) that
is a "material contract" within the meaning of Item 601(b)(10) of the SEC's
Regulation S-K or (ii) that materially restricts the conduct of business by
it or any of its Subsidiaries. Neither it nor any of its Subsidiaries is in
default under any contract, agreement, commitment, arrangement, lease,
insurance policy or other instrument to which it is a party, by which its
respective assets, business, or operations may be bound or affected, or
under which it or its respective assets, business, or operations receives
benefits, and
there has not occurred any event that, with the lapse of time or the giving
of notice or both, would constitute such a default.
(l) No Brokers. No action has been taken by Commerce that would give
rise to any valid claim against any party hereto for a brokerage
commission, finder's fee or other like payment with respect to the
transactions contemplated by this Agreement, excluding a Previously
Disclosed fee to be paid to Austin Associates, Inc.
(m) Employee Benefit Plans. (i) Commerce has delivered or made available
to Wachovia prior to the execution of this Agreement copies of all pension,
retirement, profit-sharing, deferred compensation, stock option, employee
stock ownership, severance pay, vacation, bonus, or other incentive plan,
all employment, change in control or other employee agreements, all
medical, vision, dental, or other health plans, all life insurance plans,
and all other employee benefit plans or fringe benefit plans, including
"employee benefit plans," as defined in Section 3(3) of ERISA, currently
adopted, maintained by, sponsored in whole or in part by, or contributed to
by Commerce or any of its Subsidiaries or any ERISA Affiliate thereof for
the benefit of employees, retirees, dependents, spouses, directors,
independent contractors, or other beneficiaries and under which employees,
retirees, dependents, spouses, directors, independent contractors, or other
beneficiaries are eligible to participate (collectively, the "Commerce
Benefit Plans"). Commerce has listed each Commerce Benefit Plan in Section
5.03(m) of the Commerce Disclosure Schedule. Any of the Commerce Benefit
Plans which is an "employee pension benefit plan," as defined in Section
3(2) of ERISA, is referred to herein as a "Commerce Pension Plan." Neither
Commerce nor any ERISA Affiliate currently maintains any plan that is a
"defined benefit plan," as defined in Section 3(35) of ERISA. No Commerce
Pension Plan is or has been a multiemployer plan within the meaning of
Section 3(37) of ERISA.
(ii) Commerce has delivered or made available to Wachovia prior to the
execution of this Agreement correct and complete copies of the following
documents: (i) all trust agreements or other funding arrangements for such
Commerce Benefit Plans (including insurance contracts), and all amendments
thereto, (ii) with respect to any such Commerce Benefit Plans or
amendments, all determination letters, material rulings, material opinion
letters, material information letters, or material advisory opinions issued
by the Internal Revenue Service, the United States Department of Labor, or
the Pension Benefit Guaranty Corporation after December 31, 1995, (iii)
annual reports or returns, audited or unaudited financial statements,
actuarial valuation and reports, and summary annual reports prepared for
any Commerce Benefit Plan with respect to the most recent plan year, and
(iv) the most recent summary plan descriptions and any material
modifications thereto.
(iii) All Commerce Benefit Plans are in substantial compliance with the
applicable terms of ERISA, the Code, and any other applicable laws. Each
Commerce Pension Plan which is intended to be qualified under Section
401(a) of the Code has received a favorable determination letter from the
Internal Revenue Service and Commerce is not aware of any circumstance that
is reasonably likely to result in the revocation of such favorable
determination letter. Neither Commerce nor any of its Subsidiaries has
engaged in a transaction with respect to any Commerce Benefit Plan that,
assuming the taxable period of such transaction expired as of the date
hereof, would subject Commerce or any of its Subsidiaries to a tax or
penalty imposed by either Section 4975 of the Code or Section 502(i) of
ERISA in an amount which would be material.
(iv) No Commerce Pension Plan has any "unfunded current liability," as
defined in Section 302(d) of ERISA, and the fair market value of the assets
of any such plan exceeds the plan's "benefit liabilities," as defined in
Section 4001(a)(16) of ERISA, when determined under actuarial factors that
would apply if the plan terminated in accordance with all applicable legal
requirements. Since the date of the most recent actuarial valuation, there
has been (i) no material change in the financial position of any Commerce
Pension Plan, (ii) no change in the actuarial assumptions with respect to
any Commerce Pension Plan, and (iii) no increase in benefits under any
Commerce Pension Plan as a result of plan amendments or changes in
applicable law which is reasonably likely to materially adversely affect
the funding status of any such
Plan. Neither any Commerce Pension Plan nor any "single-employer plan,"
within the meaning of Section 4001(a)(15) of ERISA, currently or formerly
maintained by any Commerce Entity, or the single-employer plan of any
entity which is considered one employer with Commerce under Section 4001 of
ERISA or Section 414 of the Code (an "ERISA Affiliate") has an "accumulated
funding deficiency" (whether or not waived) within the meaning of Section
412 of the Code or Section 302 of ERISA and no ERISA Affiliate has an
outstanding funding waiver. Neither Commerce nor any of its Subsidiaries
has provided, or is required to provide, security to a Commerce Pension
Plan or to any single-employer plan of an ERISA Affiliate pursuant to
Section 401(a)(29) of the Code.
(v) Within the six-year period preceding the Effective Time, no
liability under Subtitle C or D of Title IV of ERISA has been or is
expected to be incurred by Commerce or any of its Subsidiaries with respect
to any ongoing, frozen, or terminated single-employer plan or the single-
employer plan of any ERISA Affiliate, which liability is reasonably likely
to be material. Neither Commerce nor any of its Subsidiaries has incurred
any withdrawal liability with respect to a multiemployer plan under
Subtitle B of Title IV of ERISA (regardless of whether based on
contributions of an ERISA Affiliate), which liability is reasonably likely
to be material. No notice of a "reportable event," within the meaning of
Section 4043 of ERISA for which the 30-day reporting requirement has not
been waived, has been required to be filed for any Commerce Pension Plan or
by an ERISA Affiliate within the 12-month period ending on the date hereof.
(vi) Except as disclosed in Section 5.03(m) of the Commerce Disclosure
Schedule, neither Commerce nor any of its Subsidiaries has any liability
for retiree health and life benefits under any of the Commerce Benefit
Plans and there are no restrictions on the rights of Commerce or any of its
Subsidiaries to amend or terminate any such retiree health or benefit Plan
without incurring any liability thereunder.
(vii) Except as disclosed in Section 5.03(m) of the Commerce Disclosure
Schedule, neither the execution of this Agreement nor the consummation of
the transactions contemplated hereby will (w) entitle any employees of
Commerce or any of its Subsidiaries to severance pay or any increase in
severance pay upon any termination of employment prior to or after the date
hereof, (x) accelerate the time of payment or vesting or trigger any
payment or funding (through a grantor trust or otherwise) of compensation
or benefits under, increase the amount payable or trigger any other
material obligation pursuant to, any of the Commerce Benefit Plans, (y)
cause Commerce to record additional compensation expense on its income
statement with respect to any stock option or other equity award, or (z)
result in any payments under any of the Commerce Benefit Plans which would
not be deductible under Section 162(m) or Section 280G of the Code.
(viii) The actuarial present values of all accrued deferred compensation
entitlements (including entitlements under any executive compensation,
supplemental retirement, or employment agreement) of employees and former
employees of Commerce or any of its Subsidiaries and their respective
beneficiaries, have been fully reflected on the Commerce Financial
Statements to the extent required by and in accordance with GAAP.
(n) Labor Matters. Neither Commerce nor any of its Subsidiaries is a
party to or is bound by any collective bargaining agreement, contract or
other agreement or understanding with a labor union or labor organization,
nor is Commerce or any of its Subsidiaries the subject of a proceeding
asserting that it or any such Subsidiary has committed an unfair labor
practice (within the meaning of the National Labor Relations Act) or
seeking to compel Commerce or any such Subsidiary to bargain with any labor
organization as to wages or conditions of employment, nor is there any
strike or other labor dispute involving it or any of its Subsidiaries
pending or, to Commerce's knowledge, threatened, nor is Commerce aware of
any activity involving its or any of its Subsidiaries' employees seeking to
certify a collective bargaining unit or engaging in other organizational
activity.
(o) Takeover Laws; Dissenters Rights. Commerce has taken all action
required to be taken by it in order to exempt this Agreement, the Stock
Option Agreement, the Voting Agreement and the transactions contemplated
hereby and thereby from, and this Agreement, the Stock Option Agreement,
the Voting
Agreement and the transactions contemplated hereby and thereby are exempt
from, the requirements of any "moratorium", "control share", "fair price"
"affiliate transaction", "business combination" or other antitakeover laws
and regulations of any state (collectively, "Takeover Laws"), including,
without limitation, the State of Florida, and including, without
limitation, Sections 607.0901 through 607.0902 of the FBCA.
(p) Environmental Matters. To the knowledge of Commerce and its
Subsidiaries, neither the conduct nor operation of Commerce or its
Subsidiaries nor any condition of any property presently or previously
owned, leased or operated by any of them (including, without limitation, in
a fiduciary or agency capacity), or on which any of them holds a Lien,
violates or violated Environmental Laws and no condition has existed or
event has occurred with respect to any of them or any such property that,
with notice or the passage of time, or both, is reasonably likely to result
in liability under Environmental Laws. Neither Commerce nor any of its
Subsidiaries has received any notice from any person or entity that
Commerce or its Subsidiaries or the operation or condition of any property
ever owned, leased, operated, or held as collateral or in a fiduciary
capacity by any of them are or were in violation of or otherwise are
alleged to have liability under any Environmental Law, including, but not
limited to, responsibility (or potential responsibility) for the cleanup or
other remediation of any pollutants, contaminants, or hazardous or toxic
wastes, substances or materials at, on, beneath, or originating from any
such property.
(q) Tax Matters. (i) All Tax Returns that are required to be filed by or
with respect to Commerce and its Subsidiaries have been duly and timely
filed, (ii) all Taxes owed or required to be withheld by Commerce or its
Subsidiaries (regardless of whether shown to be due on the Tax Returns
referred to in clause (i)) have been timely paid in full, (iii) the Tax
Returns referred to in clause (i) have been examined by the Internal
Revenue Service or the appropriate state, local or foreign taxing authority
or the period for assessment of the Taxes in respect of which such Tax
Returns were required to be filed has expired, (iv) all deficiencies
asserted or assessments made as a result of such examinations have been
paid in full, (v) all Taxes that Commerce or any of its subsidiaries is
obligated to withhold from amounts owing to any employee, creditor or third
party have been paid over to the proper Governmental Authority in a timely
manner, (vi) no issues that have been raised by the relevant taxing
authority in connection with the examination of any of the Tax Returns
referred to in clause (i) are currently pending, and (vii) no waivers of
statutes of limitation have been given by or requested with respect to any
Taxes of Commerce or its Subsidiaries. Commerce has made available to
Wachovia true and correct copies of the Tax Returns filed by Commerce and
its Subsidiaries for each of the four most recent fiscal years ended on or
before December 31, 1998. Neither Commerce nor any of its Subsidiaries has
any liability with respect to income, franchise or similar Taxes that
accrued on or before the end of the most recent period covered by the
Commerce Financial Statements in excess of the amounts accrued with respect
thereto that are reflected in the Commerce Financial Statements. Neither
Commerce nor any of its Subsidiaries has any reason to believe that any
conditions exist that might prevent or impede the Merger from qualifying as
a reorganization within the meaning of Section 368(a) of the Code. Neither
Commerce nor any of its Subsidiaries is a party to any Tax allocation or
sharing agreement, is or has been a member of an affiliated group filing
consolidated or combined Tax returns (other than a group the common parent
of which is or was Commerce) or otherwise has any liability for the Taxes
of any person (other than Commerce and its Subsidiaries). No Liens for
Taxes exist with respect to any of the assets or properties of Commerce or
its Subsidiaries, except for statutory Liens for Taxes not yet due and
payable or that are being contested in good faith and reserved for in
accordance with United States generally accepted accounting principles.
Neither Commerce nor any of its Subsidiaries has been a party to any
distribution occurring during the last three (3) years in which the parties
to such distribution treated the distribution as one to which Section 355
of the Code applied. No Tax is required to be withheld pursuant to Section
1445 of the Code as a result of the transfer contemplated by this
Agreement.
(r) Risk Management Instruments. All interest rate swaps, caps, floors,
option agreements, futures and forward contracts and other similar risk
management arrangements, whether entered into for Commerce's own account,
or for the account of one or more of Commerce's Subsidiaries or their
customers (all of which are listed on Commerce's Disclosure Schedule), were
entered into (i) in accordance with prudent business practices and all
applicable laws, rules, regulations and regulatory policies and (ii) with
counterparties believed to be financially responsible at the time; and each
of them constitutes the valid and legally binding obligation of Commerce or
one of its Subsidiaries, enforceable in accordance with its terms (except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and similar laws of general
applicability relating to or affecting creditors' rights or by general
equity principles), and are in full force and effect. Neither Commerce nor
its Subsidiaries, nor to Commerce's knowledge any other party thereto, is
in breach of any of its obligations under any such agreement or
arrangement.
(s) Books and Records. The books and records of Commerce and its
Subsidiaries have been fully, properly and accurately maintained in all
material respects, and there are no material inaccuracies or discrepancies
of any kind contained or reflected therein, and they fairly present the
financial position of Commerce and its Subsidiaries.
(t) Insurance. Commerce's Disclosure Schedule sets forth all of the
insurance policies, binders, or bonds maintained by Commerce or its
Subsidiaries ("Insurance Policies"). Commerce and its Subsidiaries are
insured with reputable insurers against such risks and in such amounts as
the management of Commerce reasonably has determined to be prudent in
accordance with industry practices. All the Insurance Policies are in full
force and effect; Commerce and its Subsidiaries are not in material default
thereunder; and all claims thereunder have been filed in due and timely
fashion.
(u) Year 2000 Compliance. The software and hardware operated by Commerce
and its Subsidiaries are Y2K Compliant. A true and complete copy of
Commerce's Y2K Plan has been made available to Wachovia, and Commerce and
its Subsidiaries have effected the Y2K Plan in accordance with the schedule
provided for therein. To the best of Commerce's knowledge, incurring the
costs to implement the Y2K Plan is not reasonably likely to have a Material
Adverse Effect with respect to Commerce.
(v) Disclosure. The representations and warranties contained in this
Section 5.03 do not contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements and
information contained in this Section 5.03 not misleading.
5.04 Representations and Warranties of Wachovia. Subject to Sections 5.01
and 5.02 and except as Previously Disclosed in a paragraph of its Disclosure
Schedule corresponding to the relevant paragraph below, Wachovia hereby
represents and warrants to Commerce as follows:
(a) Organization, Standing and Authority. Wachovia is duly organized,
validly existing and in good standing under the laws of the State of North
Carolina. Wachovia is duly qualified to do business and is in good standing
in the states of the United States and foreign jurisdictions where its
ownership or leasing of property or assets or the conduct of its business
requires it to be so qualified. Wachovia has in effect all federal, state,
local, and foreign governmental authorizations necessary for it to own or
lease its properties and assets and to carry on its business as it is now
conducted.
(b) Wachovia Stock. (i) As of the date hereof, the authorized capital
stock of Wachovia consists solely of 1,000,000,000 shares of Wachovia
Common Stock, of which 201,179,264 shares were outstanding as of the date
hereof and 50,000,000 shares of Wachovia Preferred Stock, of which no
shares were outstanding as of the date hereof. As of the date hereof,
except as set forth in its Disclosure Schedule, Wachovia does not have any
Rights issued or outstanding with respect to Wachovia Stock, and Wachovia
does not have any commitment to authorize, issue or sell any Wachovia Stock
or Rights, except pursuant to this Agreement.
(ii) The shares of Wachovia Common Stock to be issued in exchange for
shares of Commerce Common Stock in the Merger, when issued in accordance
with the terms of this Agreement, will be duly authorized, validly issued,
fully paid and nonassessable.
(c) Subsidiaries. Each of Wachovia's Significant Subsidiaries has been
duly organized and is validly existing in good standing under the laws of
the jurisdiction of its organization, and is duly qualified to do business
and in good standing in the jurisdictions where its ownership or leasing of
property or the conduct of its business requires it to be so qualified and
it owns, directly or indirectly, all the issued and outstanding equity
securities of each of its Significant Subsidiaries.
(d) Corporate Power. Wachovia and each of its Significant Subsidiaries
has the corporate power and authority to carry on its business as it is now
being conducted and to own all its properties and assets; and Wachovia has
the corporate power and authority to execute, deliver and perform its
obligations under this Agreement and to consummate the transactions
contemplated hereby.
(e) Corporate Authority. This Agreement and the transactions
contemplated hereby have been authorized by all necessary corporate action
of Wachovia and its Board of Directors and does not require any vote of
stockholders. This Agreement is a valid and legally binding agreement of
Wachovia enforceable in accordance with its terms (except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and similar laws of general applicability
relating to or affecting creditors' rights or by general equity
principles).
(f) Regulatory Approvals; No Defaults. No consents or approvals of, or
filings or registrations with, any court, administrative agency or
commission or other governmental authority or instrumentality or with any
third party are required to be made or obtained by Wachovia or any of its
Subsidiaries in connection with the execution, delivery or performance by
Wachovia of this Agreement or to consummate the Merger except for (A) the
filing of applications and notices, as applicable, with federal and state
banking authorities; (B) approval of the listing on the NYSE of Wachovia
Common Stock to be issued in the Merger; (C) the filing and declaration of
effectiveness of the Registration Statement; (D) the filing of articles of
merger with the Secretary of State of the State of North Carolina pursuant
to the NCBCA and the Secretary of State of the State of Florida pursuant to
the FBCA; (E) such filings as are required to be made or approvals as are
required to be obtained under the securities or "Blue Sky" laws of various
states in connection with the issuance of Wachovia Common Stock in the
Merger; and (F) receipt of the approvals set forth in Section 7.01(b). As
of the date hereof, Wachovia is not aware of any reason why the approvals
set forth in Section 7.01(b) will not be received without the imposition of
a condition, restriction or requirement of the type described in Section
7.01(b).
(ii) Subject to receipt of the regulatory approvals referred to in the
preceding paragraph and expiration of the related waiting periods, and
required filings under federal and state securities laws, the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby do not and will not (A) constitute a
breach or violation of, or a default under, or give rise to any Lien, any
acceleration of remedies or any right of termination under, any law, rule
or regulation or any judgment, decree, order, governmental permit or
license, or contract, agreement, indenture or instrument of Wachovia or of
any of its Subsidiaries or to which Wachovia or any of its Subsidiaries or
properties is subject or bound, (B) constitute a breach or violation of, or
a default under, the certificate of incorporation or by-laws (or similar
governing documents) of Wachovia or any of its Subsidiaries, or (C) require
any consent or approval under any such law, rule, regulation, judgment,
decree, order, governmental permit or license, contract, agreement,
indenture or instrument.
(g) Financial Reports and SEC Documents; Material Adverse Effect. (i)
Wachovia's Annual Report on Form 10-K for the fiscal year ended December
31, 1998, and all other reports, registration statements, definitive proxy
statements or information statements filed or to be filed by it or any of
its Subsidiaries subsequent to December 31, 1998 under the Securities Act,
or under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, in the form
filed or to be filed with the SEC (collectively, "Wachovia's SEC
Documents"), as of the date filed, (A) complied or will comply in all
material respects as to form
with the applicable requirements under the Securities Act or the Exchange
Act, as the case may be, and (B) did not and will not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; and each
of the balance sheets contained in or incorporated by reference into any
such SEC Document (including the related notes and schedules thereto)
fairly presents, or will fairly present, the financial position of Wachovia
and its Subsidiaries as of its date, and each of the statements of income
and changes in stockholders' equity and cash flows or equivalent statements
in such SEC Documents (including any related notes and schedules thereto)
fairly presents, or will fairly present, the results of operations, changes
in stockholders' equity and changes in cash flows, as the case may be, of
Wachovia and its Subsidiaries for the periods to which they relate, in each
case in accordance with generally accepted accounting principles
consistently applied during the periods involved, except in each case as
may be noted therein, subject to normal year-end audit adjustments in the
case of unaudited statements.
(ii) Since December 31, 1998, no event has occurred or circumstance
arisen that, individually or taken together with all other facts,
circumstances and events (described in any paragraph of Section 5.04 or
otherwise), is reasonably likely to have a Material Adverse Effect with
respect to Wachovia.
(h) Litigation; Regulatory Action. (i) Other than as set forth in its
SEC Documents filed on or before the date hereof, no litigation, claim or
other proceeding before any Governmental Authority is pending against
Wachovia or any of its Subsidiaries and, to the best of Wachovia's
knowledge, no such litigation, claim or other proceeding has been
threatened.
(ii) Neither Wachovia nor any of its Subsidiaries or properties is a
party to or is subject to any order, decree, agreement, memorandum of
understanding or similar arrangement with, or a commitment letter or
similar submission to, or extraordinary supervisory letter from a
Regulatory Authority, nor has Wachovia or any of its Subsidiaries been
advised by a Regulatory Authority that such agency is contemplating issuing
or requesting (or is considering the appropriateness of issuing or
requesting) any such order, decree, agreement, memorandum of understanding,
commitment letter, supervisory letter or similar submission.
(i) Compliance with Laws. Wachovia and each of its Significant
Subsidiaries:
(i) in the conduct of its business, is in compliance with all
applicable federal, state, local and foreign statutes, laws,
regulations, ordinances, rules, judgments, orders or decrees applicable
thereto or to the employees conducting such businesses, including,
without limitation, the Equal Credit Opportunity Act, the Fair Housing
Act, the Community Reinvestment Act, the Home Mortgage Disclosure Act
and all other applicable fair lending laws and other laws relating to
discriminatory business practices; and
(ii) has all permits, licenses, authorizations, orders and approvals
of, and has made all filings, applications and registrations with, all
Governmental Authorities that are required in order to permit them to
conduct their businesses substantially as presently conducted; all such
permits, licenses, certificates of authority, orders and approvals are
in full force and effect and, to the best of its knowledge, no
suspension or cancellation of any of them is threatened.
(iii) has received, since December 31, 1998, no notification or
communication from any Governmental Authority (A) asserting that
Wachovia or any of its Subsidiaries is not in compliance with any of
the statutes, regulations, or ordinances which such Governmental
Authority enforces or (B) threatening to revoke any license, franchise,
permit, or governmental authorization (nor, to Wachovia's knowledge, do
any grounds for any of the foregoing exist).
(j) No Brokers. No action has been taken by Wachovia that would give
rise to any valid claim against any party hereto for a brokerage
commission, finder's fee or other like payment with respect to the
transactions contemplated by this Agreement.
(k) Disclosure. The representations and warranties contained in this
Section 5.04 do not contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements and
information contained in this Section 5.04 not misleading.
ARTICLE VI
Covenants
6.01 Reasonable Best Efforts. Subject to the terms and conditions of this
Agreement, each of Commerce and Wachovia agrees to use its reasonable best
efforts in good faith to take, or cause to be taken, all actions, and to do, or
cause to be done, all things necessary, proper or desirable, or advisable under
applicable laws, so as to permit consummation of the Merger as promptly as
practicable and otherwise to enable consummation of the transactions
contemplated hereby and shall cooperate fully with the other party hereto to
that end (including, if necessary, the filing of any amendments or supplements
to the Registration Statement or Proxy Statement or a resolicitation of proxies
as a consequence of an acquisition agreement by Wachovia or any of its
Subsidiaries).
6.02 Stockholder Approvals. Commerce agrees to take, in accordance with
applicable law and its articles of incorporation and by-laws, all action
necessary to convene an appropriate meeting of stockholders of Commerce to
consider and vote upon the approval and adoption of this Agreement and any
other matters required to be approved by Commerce's stockholders for
consummation of the Merger (including any adjournment or postponement, the
"Commerce Meeting") as promptly as practicable after the Registration Statement
is declared effective. Except to the extent legally required for the discharge
by the Board of Directors of its fiduciary duties as advised in writing by its
counsel, the Commerce Board shall recommend such approval, and Commerce shall
take all reasonable, lawful action to solicit such approval by its
stockholders.
6.03 Registration Statement. (a) Wachovia agrees to prepare a registration
statement on Form S-4 (the "Registration Statement") to be filed by Wachovia
with the SEC in connection with the issuance of Wachovia Stock in the Merger
(including the proxy statement and prospectus and other proxy solicitation
materials of Commerce constituting a part thereof (the "Proxy Statement") and
all related documents). Each of the parties hereto agrees to cooperate, and to
cause its Subsidiaries to cooperate, with the other, its counsel and its
accountants, in preparation of the Registration Statement and the Proxy
Statement; and provided that Commerce and its Subsidiaries have cooperated as
required above, Wachovia agrees to file the Registration Statement with the SEC
as soon as reasonably practicable. Each of Commerce and Wachovia agrees to use
all reasonable efforts to cause the Registration Statement to be declared
effective under the Securities Act as promptly as reasonably practicable after
filing thereof. Wachovia also agrees to use all reasonable efforts to obtain
all necessary state securities law or "Blue Sky" permits and approvals required
to carry out the transactions contemplated by this Agreement. Commerce agrees
to furnish to Wachovia all information concerning Commerce, its Subsidiaries,
officers, directors and stockholders as may be reasonably requested in
connection with the foregoing.
(b) Each of Commerce and Wachovia agrees, as to itself and its Subsidiaries,
that none of the information supplied or to be supplied by it for inclusion or
incorporation by reference in (i) the Registration Statement will, at the time
the Registration Statement and each amendment or supplement thereto, if any,
becomes effective under the Securities Act, 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, and (ii) the Proxy
Statement and any amendment or supplement thereto will, at the date of mailing
to stockholders and at the time of the Commerce Meeting, 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 or
any statement which, in the light of the circumstances under which such
statement is made, will be false or misleading with respect to any material
fact, or which will omit to state any material fact necessary in order to make
the statements therein not false or misleading or necessary to correct any
statement in any earlier
statement in the Proxy Statement or any amendment or supplement thereto. Each
of Commerce and Wachovia further agrees that if it shall become aware prior to
the Effective Date of any information furnished by it that would cause any of
the statements in the Proxy Statement to be false or misleading with respect to
any material fact, or to omit to state any material fact necessary to make the
statements therein not false or misleading, to promptly inform the other party
thereof and to take the necessary steps to correct the Proxy Statement.
(c) Wachovia agrees to advise Commerce, promptly after Wachovia receives
notice thereof, of the time when the Registration Statement has become
effective or any supplement or amendment has been filed, of the issuance of any
stop order or the suspension of the qualification of Wachovia Common Stock for
offering or sale in any jurisdiction, of the initiation or threat of any
proceeding for any such purpose, or of any request by the SEC for the amendment
or supplement of the Registration Statement or for additional information.
6.04 Press Releases. Each of Commerce and Wachovia agrees that neither it
nor any of their respective Subsidiaries will, without the prior approval of
the other party, issue any press release or written statement for general
circulation relating to the transactions contemplated hereby, except as
otherwise required by applicable law or regulation or NYSE rules.
6.05 Access; Information. (a) Each of Commerce and Wachovia agrees that upon
reasonable notice and subject to applicable laws relating to the exchange of
information, it shall afford the other party and the other party's officers,
employees, counsel, accountants and other authorized representatives, such
access during normal business hours throughout the period prior to the
Effective Time to the books, records (including, without limitation, tax
returns and work papers of independent auditors), properties, personnel and to
such other information as any party may reasonably request and, during such
period, it shall furnish promptly to such other party (i) a copy of each
material report, schedule and other document filed by it pursuant to the
requirements of federal or state securities or banking laws, and (ii) all other
information concerning the business, properties and personnel of it as the
other may reasonably request.
(b) Each agrees that it will not, and will cause its representatives not to,
use any information obtained pursuant to this Section 6.05 (as well as any
other information obtained prior to the date hereof in connection with the
entering into of this Agreement) for any purpose unrelated to the consummation
of the transactions contemplated by this Agreement. Subject to the requirements
of law, each party will keep confidential, and will cause its representatives
to keep confidential, all information and documents obtained pursuant to this
Section 6.05 (as well as any other information obtained prior to the date
hereof in connection with the entering into of this Agreement) unless such
information (i) was already known to such party, (ii) becomes available to such
party from other sources not known by such party to be bound by a
confidentiality obligation, (iii) is disclosed with the prior written approval
of the party to which such information pertains or (iv) is or becomes readily
ascertainable from published information or trade sources. In the event that
this Agreement is terminated or the transactions contemplated by this Agreement
shall otherwise fail to be consummated, each party shall promptly cause all
copies of documents or extracts thereof containing information and data as to
another party hereto to be returned to the party which furnished the same. No
investigation by either party of the business and affairs of the other shall
affect or be deemed to modify or waive any representation, warranty, covenant
or agreement in this Agreement, or the conditions to either party's obligation
to consummate the transactions contemplated by this Agreement.
6.06 Acquisition Proposals. Commerce agrees that neither it nor any of its
Subsidiaries nor any of the respective officers and directors of Commerce or
its Subsidiaries shall, and Commerce shall direct and use its reasonable best
efforts to cause its employees, agents and representatives (including, without
limitation, any investment banker, attorney or accountant retained by it or any
of its Subsidiaries) not to, initiate, solicit or encourage, directly or
indirectly, any enquiries or the making of any proposal or offer (including,
without limitation, any proposal or offer to stockholders of Commerce) with
respect to a merger, consolidation or similar transaction involving, or any
purchase of all or any significant portion of the assets or any equity
securities of, Commerce or its Significant Subsidiary (any such proposal or
offer being hereinafter referred to as
an "Acquisition Proposal") or, except to the extent legally required for the
discharge by the Board of Directors of its fiduciary duties as advised in
writing by its counsel, engage in any negotiations concerning, or provide any
confidential information or data to, or have any discussions with, any person
relating to an Acquisition Proposal, or otherwise facilitate any effort or
attempt to make or implement an Acquisition Proposal. Commerce shall
immediately cease and cause to be terminated any activities, discussions or
negotiations conducted prior to the date of this Agreement with any parties
other than Wachovia with respect to any of the foregoing and shall use its
reasonable best efforts to enforce any confidentiality or similar agreement
relating to an Acquisition Proposal. Commerce shall promptly (within 24 hours)
advise Wachovia following the receipt by Commerce of any Acquisition Proposal
and the substance thereof (including the identity of the person making such
Acquisition Proposal), and advise Wachovia of any developments with respect to
such Acquisition Proposal immediately upon the occurrence thereof.
6.07 Affiliate Agreements. (a) Not later than the 15th day prior to the
mailing of the Proxy Statement, Commerce shall deliver to Wachovia a schedule
of each person that, to its knowledge, is or is reasonably likely to be, as of
the date of Commerce Meeting, deemed to be an "affiliate" of it (each, a
"Commerce Affiliate") as that term is defined in Rule 144 and used in Rule 145
under the Securities Act.
(b) Commerce shall use its reasonable best efforts to cause each person who
may be deemed to be a Commerce Affiliate to execute and deliver to Wachovia on
or before the date of mailing of the Proxy Statement an "affiliates agreement"
in form attached hereto as Exhibit E.
6.08 Takeover Laws. No party hereto shall take any action that would cause
the transactions contemplated by this Agreement, the Stock Option Agreement or
the Voting Agreements to be subject to requirements imposed by any Takeover Law
and each of them shall take all necessary steps within its control to exempt
(or ensure the continued exemption of) the transactions contemplated by this
Agreement from, or if necessary challenge the validity or applicability of, any
applicable Takeover Law, as now or hereafter in effect.
6.09 Certain Policies. Prior to the Effective Date, Commerce shall,
consistent with generally accepted accounting principles and on a basis
mutually satisfactory to it and Wachovia, modify and change its loan,
litigation and real estate valuation policies and practices (including loan
classifications and levels of reserves) so as to be applied on a basis that is
consistent with those of Wachovia; provided, however, that Commerce shall not
be obligated to take any such action pursuant to this Section 6.09 unless and
until Wachovia acknowledges that all conditions to its obligation to consummate
the Merger have been satisfied.
6.10 NYSE Listing. Wachovia agrees to use its reasonable best efforts to
list, prior to the Effective Date, on the NYSE, subject to official notice of
issuance, the shares of Wachovia Common Stock to be issued to the holders of
Commerce Common Stock in the Merger.
6.11 Regulatory Applications. (a) Wachovia and Commerce and their respective
Subsidiaries shall cooperate and use their respective reasonable best efforts
to prepare all documentation, to effect all filings and to obtain all permits,
consents, approvals and authorizations of all third parties and Governmental
Authorities necessary to consummate the transactions contemplated by this
Agreement. Each of Wachovia and Commerce shall have the right to review in
advance, and to the extent practicable each will consult with the other, in
each case subject to applicable laws relating to the exchange of information,
with respect to, all material written information submitted to any third party
or any Governmental Authority in connection with the transactions contemplated
by this Agreement. In exercising the foregoing right, each of the parties
hereto agrees to act reasonably and as promptly as practicable. Each party
hereto agrees that it will consult with the other party hereto with respect to
the obtaining of all material permits, consents, approvals and authorizations
of all third parties and Governmental Authorities necessary or advisable to
consummate the transactions contemplated by this Agreement and each party will
keep the other party appraised of the status of material matters relating to
completion of the transactions contemplated hereby.
(b) Each party agrees, upon request, to furnish the other party with all
information concerning itself, its Subsidiaries, directors, officers and
stockholders and such other matters as may be reasonably necessary or advisable
in connection with any filing, notice or application made by or on behalf of
such other party or any of its Subsidiaries to any third party or Governmental
Authority.
6.12 Indemnification. (a) Following the Effective Date and for a period of
six years thereafter, Wachovia shall indemnify, defend and hold harmless the
present directors and officers of Commerce and its Subsidiaries (each, an
"Indemnified Party") against all costs or expenses (including reasonable
attorneys' fees), judgments, fines, losses, claims, damages or liabilities
(collectively, "Costs") incurred in connection with any claim, action, suit,
proceeding or investigation, whether civil, criminal, administrative or
investigative, arising out of actions or omissions occurring at or prior to the
Effective Time (including, without limitation, the transactions contemplated by
this Agreement) to the fullest extent that Commerce is permitted to indemnify
(and advance expenses to) its directors and officers under the laws of the
State of Florida, the Commerce Articles and the Commerce By-Laws as in effect
on the date hereof; provided that any determination required to be made with
respect to whether an officer's or director's conduct complies with the
standards set forth under Florida law, the Commerce Articles and the Commerce
By-Laws shall be made by independent counsel (which shall not be counsel that
provides material services to Wachovia) selected by Wachovia and reasonably
acceptable to such officer or director; and provided, further, that in the
absence of applicable Florida judicial precedent to the contrary, such counsel,
in making such determination, shall presume such officer's or director's
conduct complied with such standard and Wachovia shall have the burden to
demonstrate that such officer's or director's conduct failed to comply with
such standard.
(b) For a period of three years from the Effective Time, Wachovia shall use
its reasonable efforts to provide that portion of director's and officer's
liability insurance that serves to reimburse the present and former officers
and directors of Commerce or any of its Subsidiaries (determined as of the
Effective Time) (as opposed to Commerce) with respect to claims against such
directors and officers arising from facts or events which occurred before the
Effective Time, which insurance shall contain at least the same coverage and
amounts, and contain terms and conditions no less advantageous, as that
coverage currently provided by Commerce; provided, however, that in no event
shall Wachovia be required to expend more than 150 percent of the current
amount expended by Commerce (the "Insurance Amount") to maintain or procure
such directors and officers insurance coverage; provided, further, that if
Wachovia is unable to maintain or obtain the insurance called for by this
Section 6.12(b), Wachovia shall use its reasonable best efforts to obtain as
much comparable insurance as is available for the Insurance Amount; provided,
further, that officers and directors of Commerce or any Subsidiary may be
required to make application and provide customary representations and
warranties to Wachovia's insurance carrier for the purpose of obtaining such
insurance.
(c) Any Indemnified Party wishing to claim indemnification under Section
6.12(a), upon learning of any claim, action, suit, proceeding or investigation
described above, shall promptly notify Wachovia thereof; provided that the
failure so to notify shall not affect the obligations of Wachovia under Section
6.12(a) unless and to the extent that Wachovia is actually prejudiced as a
result of such failure.
(d) If Wachovia or any of its successors or assigns shall consolidate with
or merge into any other entity and shall not be the continuing or surviving
entity of such consolidation or merger or shall transfer all or substantially
all of its assets to any entity, then and in each case, proper provision shall
be made so that the successors and assigns of Wachovia shall assume the
obligations set forth in this Section 6.12.
6.13 Benefit Plans. As soon as practicable following the Effective Time,
Wachovia shall provide generally to employees (including officers) of Commerce,
employee benefits, including severance benefits, under employee and welfare
benefit plans on terms and conditions which, when taken as a whole, are
substantially similar to those currently provided by Wachovia and Wachovia Bank
to similarly situated employees (including officers) of Wachovia Bank;
provided, however, that, prior to the time that such benefits are provided,
such employees of Commerce will continue to be provided with benefits under
employee benefit
plans (other than plans involving the issuance of securities of Commerce or
Wachovia) which in the aggregate are substantially comparable to those
currently provided by Commerce to such employees. All discretionary awards and
benefits under any employee benefit plans of Wachovia shall be subject to the
discretion of the persons or committee administering such plans. To the extent
that Wachovia causes an employee benefit plan maintained by Wachovia to cover
employees of Commerce, Wachovia shall cause such employee benefit plan to
credit such Employee's service with Commerce prior to the Effective Date for
purposes of participation, eligibility and vesting, but not for purposes of
benefit accrual, to the same extent that such service was credited by Commerce.
Except as expressly provided by the immediately preceding sentence, nothing
contained herein shall in any way limit or restrict the ability of Wachovia to
amend, modify, or terminate any employee benefit plan, including the Commerce
Benefit Plans, following the Effective Time.
6.14 Accountants' Letters. Commerce shall use its reasonable best efforts to
cause to be delivered to Wachovia, and to Wachovia's directors and officers who
sign the Registration Statement, a letter of KPMG, LLP independent auditors,
dated (i) the date on which the Registration Statement shall become effective
and (ii) a date shortly prior to the Effective Date, and addressed to Wachovia,
and such directors and officers, in form and substance customary for "comfort"
letters delivered by independent accountants in accordance with Statement of
Accounting Standards No. 72.
6.15 Notification of Certain Matters. Each of Commerce and Wachovia shall
give prompt notice to the other of any fact, event or circumstance known to it
that (i) is reasonably likely, individually or taken together with all other
facts, events and circumstances known to it, to result in any Material Adverse
Effect with respect to it or (ii) would cause or constitute a material breach
of any of its representations, warranties, covenants or agreements contained
herein.
6.16 Local Advisory Board. At the effective time of the merger of National
Bank of Commerce into Wachovia Bank, Wachovia will cause Wachovia Bank to
create a local advisory board for Orange County, Florida. The local advisory
board will continue in accordance with Wachovia Bank's customary practices for
its local advisory boards for a minimum period of one year from the date of the
merger of National Bank of Commerce into Wachovia Bank (provided, however, that
Wachovia shall, for the first year, pay a retainer of $3,000 to each member of
the local advisory board). Wachovia Bank will appoint up to 12 of the qualified
non-employee directors of National Bank of Commerce to the local advisory board
and will consult with National Bank of Commerce to determine the appropriate
individuals to appoint to this board.
6.17 Noncompetition Agreements. Commerce agrees to use its best efforts to
cause each officer identified on Exhibit C to execute and deliver to Wachovia
on or before the mailing of the Proxy Statement the Officer Noncompetition
Agreement.
6.18 Stock Appreciation Rights. Commerce agrees to use its best efforts to
cause each director of Commerce to execute and deliver to Wachovia an Amended
and Restated 1999 Stock Appreciation Rights Agreements in form and substance
satisfactory to Wachovia to (i) eliminate the adjustment in the number of
phantom shares following a change of control of Commerce, (ii) clarify that the
value of the stock appreciation rights will be the difference between the
equity per share (as that term is used in the 1999 Stock Appreciation Rights
Agreement) and the value of the Wachovia Common Stock received in the Merger,
as adjusted through the application of the Exchange Ratio, examples of the
operation of such formula are set forth and agreed to by Wachovia and Commerce
in Commerce's Disclosure Schedule, and (iii) make such other changes as
Wachovia may reasonably request, provided that such changes do not amend the
timing of distributions under the 1999 Stock Appreciation Rights Agreements or
the provisions of clauses (i) or (ii) above. Commerce also agrees that, as of
the Effective Time but before giving effect to any adjustment because of the
application of the Exchange Ratio, no more than 13,000 stock appreciation
rights will be issued and outstanding.
ARTICLE VII
Conditions to Consummation of the Merger
7.01 Conditions to Each Party's Obligation to Effect the Merger. The
respective obligation of each of Wachovia and Commerce to consummate the Merger
is subject to the fulfillment or written waiver by Wachovia and Commerce prior
to the Effective Time of each of the following conditions:
(a) Stockholder Approval. This Agreement shall have been duly adopted by
the affirmative vote of the holders of the requisite number of outstanding
shares of Commerce Common Stock entitled to vote thereon in accordance with
applicable law, the Commerce Certificate and the Commerce By-Laws.
(b) Regulatory Approvals. All regulatory approvals required to
consummate the transactions contemplated hereby, including the Subsidiary
Combination, shall have been obtained and shall remain in full force and
effect and all statutory waiting periods in respect thereof shall have
expired and no such approvals shall contain any conditions, restrictions or
requirements which the Wachovia Board reasonably determines in good faith
would (i) following the Effective Time, have a Material Adverse Effect on
the Surviving Corporation and its Subsidiaries taken as a whole or (ii)
reduce the benefits of the transactions contemplated hereby to such a
degree that Wachovia would not have entered into this Agreement had such
conditions, restrictions or requirements been known at the date hereof.
(c) No Injunction. No Governmental Authority of competent jurisdiction
shall have enacted, issued, promulgated, enforced or entered any statute,
rule, regulation, judgment, decree, injunction or other order (whether
temporary, preliminary or permanent) which is in effect and prohibits
consummation of the transactions contemplated by this Agreement.
(d) Registration Statement. The Registration Statement shall have become
effective under the Securities Act and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been initiated or threatened by the
SEC.
(e) Blue Sky Approvals. All permits and other authorizations under state
securities laws necessary to consummate the transactions contemplated
hereby and to issue the shares of Wachovia Common Stock to be issued in the
Merger shall have been received and be in full force and effect.
(f) Listing. The shares of Wachovia Common Stock to be issued in the
Merger shall have been approved for listing on the NYSE, subject to
official notice of issuance.
7.02 Conditions to Obligation of Commerce. The obligation of Commerce to
consummate the Merger is also subject to the fulfillment or written waiver by
Commerce prior to the Effective Time of each of the following conditions:
(a) Representations and Warranties. Subject to the standard set forth in
Section 5.02, the representations and warranties of Wachovia set forth in
this Agreement shall be true and correct as of the date of this Agreement
and as of the Effective Date as though made on and as of the Effective Date
(except that representations and warranties that by their terms speak as of
the date of this Agreement or some other date shall be true and correct as
of such date), and Commerce shall have received a certificate, dated the
Effective Date, signed on behalf of Wachovia by the Chief Executive Officer
and the Chief Financial Officer of Wachovia to such effect.
(b) Performance of Obligations of Wachovia. Wachovia shall have
performed in all material respects all obligations required to be performed
by them under this Agreement at or prior to the Effective Time, and
Commerce shall have received a certificate, dated the Effective Date,
signed on behalf of Wachovia by the Chief Executive Officer and the Chief
Financial Officer of Wachovia to such effect.
(c) Opinion of Commerce's Counsel. Commerce shall have received an
opinion of Zimmerman, Shuffield, Xxxxx & Xxxxxxxxx, P.A., counsel to
Commerce, dated the date of the Proxy Statement and the Effective Date, to
the effect that, on the basis of facts, representations and assumptions set
forth in such
opinion, (i) the Merger will be treated for federal income tax purposes as
a "reorganization" within the meaning of Section 368 (a) of the Code, (ii)
Wachovia and Commerce will each be a party to that reorganization within
the meaning of Section 368(b) of the Code, and (iii) no gain or loss will
be recognized by stockholders of Commerce who receive shares of Wachovia
Common Stock in exchange for shares of Commerce Common Stock, except that
gain or loss may be recognized as to cash received in lieu of fractional
share interests. In rendering its opinion, Zimmerman, Shuffield, Xxxxx &
Sutcliffe, P.A. may require and rely upon representations contained in
letters from Commerce and others.
7.03 Conditions to Obligation of Wachovia. The obligation of Wachovia to
consummate the Merger is also subject to the fulfillment or written waiver by
Wachovia prior to the Effective Time of each of the following conditions:
(a) Representations and Warranties. Subject to the standard set forth in
Section 5.02, the representations and warranties of Commerce set forth in
this Agreement shall be true and correct as of the date of this Agreement
and as of the Effective Date as though made on and as of the Effective Date
(except that representations and warranties that by their terms speak as of
the date of this Agreement or some other date shall be true and correct as
of such date) and Wachovia shall have received a certificate, dated the
Effective Date, signed on behalf of Commerce by the Chief Executive Officer
and the Chief Financial Officer of Commerce to such effect.
(b) Performance of Obligations of Commerce. Commerce shall have
performed in all material respects all obligations required to be performed
by it under this Agreement at or prior to the Effective Time, and Wachovia
shall have received a certificate, dated the Effective Date, signed on
behalf of Commerce by the Chief Executive Officer and the Chief Financial
Officer of Commerce to such effect.
(c) Opinion of Wachovia's Counsel. Wachovia shall have received an
opinion of Xxxxxxxx & Xxxxxxxx, special counsel to Wachovia, dated the date
of the Proxy Statement and the Effective Date, to the effect that, on the
basis of facts, representations and assumptions set forth in such opinion,
(i) the Merger will be treated for federal income tax purposes as a
"reorganization" within the meaning of Section 368(a) of the Code and (ii)
Wachovia and Commerce will each be a party to that reorganization within
the meaning of Section 368(b) of the Code. In rendering its opinion,
Xxxxxxxx & Xxxxxxxx may require and rely upon representations contained in
letters from Wachovia and others.
(d) Noncompetition Agreements. All of the Director Noncompetition
Agreements entered into with the directors listed on Exhibit C shall be in
full force and effect (other than as a consequence of death or disability).
Each officer listed on Exhibit C shall have executed and delivered to
Wachovia an Officer Noncompetition Agreement and all such agreements shall
be in full force and effect (other than as a consequence of death or
disability).
(e) Accountants' Letters. Wachovia and its directors and officers who
sign the Registration Statement shall have received the letters referred to
in Section 6.14 from KPMG, LLP, Commerce's independent auditors.
(f) Opinion of Commerce's Counsel. Wachovia shall have received an
opinion of Zimmerman, Shuffield, Xxxxx & Sutcliffe, P.A., that the
Noncompetition Agreements are valid, binding and enforceable in accordance
with their terms under Florida law.
(g) Employment Agreement. The Employment Agreement entered into with Xxx
X. Xxxxxx shall be in full force and effect (other than as a consequence of
death or disability).
(h) Commerce Stock Appreciation Rights. Each director shall have entered
into an Amended and Restated 1999 Stock Appreciation Rights Agreement and
all such agreements will be in full force and effect. Further, as a result
of the Merger, but before giving effect to any adjustment because of the
application of the Exchange Ratio, no more than 13,000 stock appreciation
rights shall be issued and outstanding.
ARTICLE VIII
Termination
8.01 Termination. This Agreement may be terminated, and the Merger may be
abandoned:
(a) Mutual Consent. At any time prior to the Effective Time, by the
mutual consent of Wachovia and Commerce, if the Board of Directors of each
so determines by vote of a majority of the members of its entire Board.
(b) Breach. At any time prior to the Effective Time, by Wachovia or
Commerce, if its Board of Directors so determines by vote of a majority of
the members of its entire Board, in the event of either: (i) a breach by
the other party of any representation or warranty contained herein (subject
to the standard set forth in Section 5.02), which breach cannot be or has
not been cured within 30 days after the giving of written notice to the
breaching party of such breach; or (ii) a breach by the other party of any
of the covenants or agreements contained herein, which breach cannot be or
has not been cured within 30 days after the giving of written notice to the
breaching party of such breach, provided that such breach (whether under
(i) or (ii)) would be reasonably likely, individually or in the aggregate
with other breaches, to result in a Material Adverse Effect.
(c) Delay. At any time prior to the Effective Time, by Wachovia or
Commerce, if its Board of Directors so determines by vote of a majority of
the members of its entire Board, in the event that the Merger is not
consummated by October 31, 2000, except to the extent that the failure of
the Merger then to be consummated arises out of or results from the knowing
action or inaction of the party seeking to terminate pursuant to this
Section 8.01(c).
(d) No Approval. By Commerce or Wachovia, if its Board of Directors so
determines by a vote of a majority of the members of its entire Board, in
the event (i) the approval of any Governmental Authority required for
consummation of the Merger and the other transactions contemplated by this
Agreement shall have been denied by final nonappealable action of such
Governmental Authority or (ii) the stockholder approval required by Section
7.01(a) herein is not obtained prior to the Effective Date.
(e) Failure to Recommend, Etc. At any time prior to the Commerce
Meeting, by Wachovia if Commerce Board shall have failed to make its
recommendation referred to in Section 6.02, withdrawn such recommendation
or modified or changed such recommendation in a manner adverse in any
respect to the interests of Wachovia.
8.02 Effect of Termination and Abandonment. In the event of termination of
this Agreement and the abandonment of the Acquisition pursuant to this Article
VIII, no party to this Agreement shall have any liability or further obligation
to any other party hereunder except (i) as set forth in Section 9.01 and (ii)
that termination will not relieve a breaching party from liability for any
willful breach of this Agreement giving rise to such termination.
ARTICLE IX
Miscellaneous
9.01 Survival. No representations, warranties, agreements and covenants
contained in this Agreement shall survive the Effective Time (other than
Sections 6.12 and this Article IX which shall survive the Effective Time) or
the termination of this Agreement if this Agreement is terminated prior to the
Effective Time (other than Sections 6.03(b), 6.05(b), 8.02 and this Article IX
which shall survive such termination).
9.02 Waiver; Amendment. Prior to the Effective Time, any provision of this
Agreement may be (i) waived by the party benefited by the provision, or (ii)
amended or modified at any time, by an agreement in writing between the parties
hereto executed in the same manner as this Agreement, except that, after the
Commerce Meeting, this Agreement may not be amended if it would violate the
FBCA.
9.03 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to constitute an original.
9.04 Governing Law. This Agreement shall be governed by, and interpreted in
accordance with, the laws of the State of North Carolina applicable to
contracts made and to be performed entirely within such State (except to the
extent that mandatory provisions of Federal law or of the NCBCA or FBCA are
applicable).
9.05 Waiver of Jury Trial. Each party hereto acknowledges and agrees that
any controversy which may arise under this Agreement is likely to involve
complicated and difficult issues, and therefore each such party hereby
irrevocably and unconditionally waives any right such party may have to a trial
by jury in respect of any litigation directly or indirectly arising out of or
relating to this Agreement, or the transactions contemplated by this Agreement.
Each party certifies and acknowledges that (a) no representative, agent or
attorney of any other party has represented, expressly or otherwise, that such
other party would not, in the event of litigation, seek to enforce the
foregoing waiver, (b) each party understands and has considered the
implications of this waiver, (c) each party makes this waiver voluntarily, and
(d) each party has been induced to enter into this Agreement by, among other
things, the mutual waivers and certifications in this Section 9.05.
9.06 Assignment. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto without
the prior written consent of the other parties hereto and any purported
assignment in violation of this Section 9.06 shall be null and void.
9.07 Expenses. Each party hereto will bear all expenses incurred by it in
connection with this Agreement and the transactions contemplated hereby, except
that printing expenses and SEC fees shall be shared equally between Commerce
and Wachovia.
9.08 Notices. All notices, requests and other communications hereunder to a
party shall be in writing and shall be deemed given if personally delivered,
telecopied (with confirmation) or mailed by registered or certified mail
(return receipt requested) to such party at its address set forth below or such
other address as such party may specify by notice to the parties hereto.
If to Commerce, to:
Commerce National Corporation
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxx 00000
Attention: Xxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Zimmerman, Shuffield, Xxxxx & Xxxxxxxxx, P.A.
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx, 00000
Attention: W. Xxxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Wachovia, to:
Wachovia Corporation
000 Xxxxx Xxxx Xxxxxx
P.O. Box 3099
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
9.09 Entire Understanding; No Third Party Beneficiaries. This Agreement, the
Stock Option Agreement and the Voting Agreements represent the entire
understanding of the parties hereto with reference to the transactions
contemplated hereby and thereby and this Agreement, the Stock Option Agreement
and the Voting Agreements supersede any and all other oral or written
agreements heretofore made. Nothing in this Agreement expressed or implied, is
intended to confer upon any person, other than the parties hereto or their
respective successors, any rights, remedies, obligations or liabilities under
or by reason of this Agreement.
9.10 Interpretation; Effect. When a reference is made in this Agreement to
Sections, Exhibits or Schedules, such reference shall be to a Section of, or
Exhibit or Schedule to, this Agreement unless otherwise indicated. The table of
contents and headings contained in this Agreement are for reference purposes
only and are not part of this Agreement. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall be deemed to
be followed by the words "without limitation."
* * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in counterparts by their duly authorized officers, all as of the day
and year first above written.
COMMERCE NATIONAL CORPORATION
/s/ Xxx X. Xxxxxx
By: ____________________________________
Name: Xxx X. Xxxxxx
Title:President and
Chief Executive Officer
WACHOVIA CORPORATION
/s/ G. Xxxxxx Xxxxxxxxxxx
By:_____________________________________
Name: G. Xxxxxx Xxxxxxxxxxx
Title:President and
Chief Operating Officer
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of March 3, 2000, between Wachovia
Corporation, a North Carolina corporation ("Grantee"), and Commerce National
Corporation, a Florida corporation ("Issuer").
W I T N E S S E T H:
WHEREAS, Grantee and Issuer are entering into an Agreement and Plan of
Merger (the "Merger Agreement");
WHEREAS, as a condition and an inducement to Grantee's entering into the
Merger Agreement, Issuer has agreed to grant Grantee the Option (as hereinafter
defined) on the terms and conditions set forth in this Agreement; and
WHEREAS, the Board of Directors of Issuer has approved the grant of the
Option and the Merger Agreement prior to the execution hereof;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements set forth herein and in the Merger Agreement, the parties hereto
agree as follows:
1. (a) Issuer hereby grants to Grantee an unconditional, irrevocable option
(the "Option") to purchase, subject to the terms hereof, up to an aggregate of
179,500 fully paid and nonassessable shares of the common stock, par value
$0.10 per share, of Issuer ("Common Stock") at a price per share equal to
$19.45 (such price, as adjusted if applicable, the "Option Price"); provided,
that in no event shall the number of shares for which this Option is
exercisable exceed 24.9% of the issued and outstanding shares of Common Stock
after giving effect to any shares subject or issued pursuant to the Option. The
number of shares of Common Stock that may be received upon the exercise of the
Option and the Option Price are subject to adjustment as herein set forth.
(b) In the event that any additional shares of Common Stock are issued or
otherwise become outstanding after the date of this Agreement (other than
pursuant to this Agreement and other than pursuant to an event described in
Section 5(a) hereof), the number of shares of Common Stock subject to the
Option shall be increased so that, after such issuance, such number together
with any shares of Common Stock previously issued pursuant hereto, equals 24.9%
of the number of shares of Common Stock then issued and outstanding without
giving effect to any shares subject or issued pursuant to the Option. Nothing
contained in this Section l(b) or elsewhere in this Agreement shall be deemed
to authorize Issuer to issue shares in breach of any provision of the Merger
Agreement.
2. (a) The Holder (as hereinafter defined) may exercise the Option, in whole
or part, if, but only if, both an Initial Triggering Event (as hereinafter
defined) and a Subsequent Triggering Event (as hereinafter defined) shall have
occurred prior to the occurrence of an Exercise Termination Event (as
hereinafter defined), provided that the Holder shall have sent the written
notice of such exercise (as provided in subsection (e) of this Section 2)
within six (6) months following such Subsequent Triggering Event (or such later
period as provided in Section 10). Each of the following shall be an "Exercise
Termination Event": (i) the Effective Time of the Merger; (ii) termination of
the Merger Agreement in accordance with the provisions thereof if such
termination occurs prior to the occurrence of an Initial Triggering Event
except a termination by Grantee pursuant to Section 8.01(b) of the Merger
Agreement or by Grantee or Issuer pursuant to Section 8.01(d) of the Merger
Agreement (each, a "Listed Termination"); or (iii) the passage of eighteen (18)
months (or such longer period as provided in Section 10) after termination of
the Merger Agreement if such termination follows the occurrence of an Initial
Triggering Event or is a Listed Termination. The term "Holder" shall mean the
holder
or holders of the Option. Notwithstanding anything to the contrary contained
herein, (i) the Option may not be exercised at any time when Grantee shall be
in material breach of any of its covenants or agreements contained in the
Merger Agreement such that Issuer shall be entitled to terminate the Merger
Agreement pursuant to Section 8.01(b) thereof and (ii) this Agreement shall
automatically terminate upon the proper termination of the Merger Agreement by
Issuer pursuant to Section 8.01(b) thereof as a result of the material breach
by Grantee of its covenants or agreements contained in the Merger Agreement.
(b) The term "Initial Triggering Event" shall mean any of the following
events or transactions occurring on or after the date hereof:
(i) Issuer or its Significant Subsidiary (as defined in Rule 1-02 of
Regulation S-X promulgated by the Securities and Exchange Commission
(the "SEC")), the "Issuer Subsidiary"), without having received
Grantee's prior written consent, shall have entered into an agreement
to engage in an Acquisition Transaction (as hereinafter defined) with
any person (the term "person" for purposes of this Agreement having the
meaning assigned thereto in Sections 3(a)(9) and 13(d)(3) of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and the
rules and regulations thereunder) other than Grantee or any of its
Subsidiaries (each a "Grantee Subsidiary") or the Board of Directors of
Issuer (the "Issuer Board") shall have recommended that the
shareholders of Issuer approve or accept any Acquisition Transaction
other than as contemplated by the Merger Agreement. For purposes of
this Agreement, (a) "Acquisition Transaction" shall mean (x) a merger
or consolidation, or any similar transaction, involving Issuer or the
Issuer Subsidiary (other than mergers, consolidations or similar
transactions involving solely Issuer and/or one or more wholly-owned
Subsidiaries of the Issuer, provided, any such transaction is not
entered into in violation of the terms of the Merger Agreement), (y) a
purchase, lease or other acquisition of all or any substantial part of
the assets or deposits of Issuer or the Issuer Subsidiary, or (z) a
purchase or other acquisition (including by way of merger,
consolidation, share exchange or otherwise) of securities representing
10% or more of the voting power of Issuer or the Issuer Subsidiary and
(b) "Subsidiary" shall have the meaning set forth in Rule 12b-2 under
the 1934 Act;
(ii) Any person other than the Grantee or any Grantee Subsidiary
shall have acquired beneficial ownership or the right to acquire
beneficial ownership of 10% or more of the outstanding shares of Common
Stock (the term "beneficial ownership" for purposes of this Agreement
having the meaning assigned thereto in Section 13(d) of the 1934 Act,
and the rules and regulations thereunder);
(iii) The shareholders of Issuer shall have voted and failed to
approve the Merger Agreement and the Merger at a meeting which has been
held for that purpose or any adjournment or postponement thereof, or
such meeting shall not have been held in violation of the Merger
Agreement or shall have been canceled prior to termination of the
Merger Agreement if, prior to such meeting (or if such meeting shall
not have been held or shall have been canceled, prior to such
termination), it shall have been publicly announced that any person
(other than Grantee or any of its Subsidiaries) shall have made, or
disclosed an intention to make, a proposal to engage in an Acquisition
Transaction;
(iv) The Issuer Board shall have withdrawn or modified (or publicly
announced its intention to withdraw or modify) in any manner adverse in
any respect to Grantee its recommendation that the shareholders of
Issuer approve the transactions contemplated by the Merger Agreement,
or Issuer or the Issuer Subsidiary shall have authorized, recommended,
proposed (or publicly announced its intention to authorize, recommend
or propose) an agreement to engage in an Acquisition Transaction with
any person other than Grantee or a Grantee Subsidiary;
(v) Any person other than Grantee or any Grantee Subsidiary shall
have made a proposal to Issuer or its shareholders to engage in an
Acquisition Transaction and such proposal shall have been publicly
announced;
(vi) Any person other than Grantee or any Grantee Subsidiary shall
have filed with the SEC, or distributed, a registration statement or
tender offer materials with respect to a potential exchange or tender
offer that would constitute an Acquisition Transaction (or filed a
preliminary proxy statement with the SEC with respect to a potential
vote by its shareholders to approve the issuance of shares to be
offered in such an exchange offer); or
(vii) Issuer shall have willfully breached any covenant or
obligation contained in the Merger Agreement in anticipation of
engaging in an Acquisition Transaction, and following such breach
Grantee would be entitled to terminate the Merger Agreement (whether
immediately or after the giving of notice or passage of time or both);
or
(viii) Any person other than Grantee or any Grantee Subsidiary,
without Grantee's prior written consent, shall have filed an
application or notice with the Board of Governors of the Federal
Reserve System (the "Federal Reserve Board") or other federal or state
bank regulatory or antitrust authority, which application or notice has
been accepted for processing, for approval to engage in an Acquisition
Transaction; or
(ix) The failure of a shareholder or shareholders in the aggregate
holding in excess of 5% of the Company's outstanding Common Stock to
comply with the terms of his, her or its Voting Agreement (as defined
in the Merger Agreement).
(c) The term "Subsequent Triggering Event" shall mean any of the
following events or transactions occurring after the date hereof:
(i) The acquisition by any person (other than Grantee or any Grantee
Subsidiary) of beneficial ownership of 20% or more of the then
outstanding Common Stock; or
(ii) The occurrence of the Initial Triggering Event described in
clause (i) of subsection (b) of this Section 2, except that the
percentage referred to in clause (z) of the second sentence thereof
shall be 20%.
(d) Issuer shall notify Grantee promptly in writing of the occurrence of
any Initial Triggering Event or Subsequent Triggering Event (together, a
"Triggering Event"), it being understood that the giving of such notice by
Issuer shall not be a condition to the right of the Holder to exercise the
Option.
(e) In the event the Holder is entitled to and wishes to exercise the
Option (or any portion thereof), it shall send to Issuer a written notice (the
date of which being herein referred to as the "Notice Date") specifying (i) the
total number of shares it will purchase pursuant to such exercise and (ii) a
place and date not earlier than three business days nor later than 60 business
days from the Notice Date for the closing of such purchase (the "Closing
Date"); provided, that if prior notification to or approval of the Federal
Reserve Board or any other regulatory or antitrust agency is required in
connection with such purchase, the Holder shall promptly file the required
notice or application for approval, shall promptly notify Issuer of such
filing, and shall expeditiously process the same and the period of time that
otherwise would run pursuant to this sentence shall run instead from the date
on which any required notification periods have expired or been terminated or
such approvals have been obtained and any requisite waiting period or periods
shall have passed. Any exercise of the Option shall be deemed to occur on the
Notice Date relating thereto.
(f)At the closing referred to in subsection (e) of this Section 2, the
Holder shall (i) pay to Issuer the aggregate purchase price for the shares of
Common Stock purchased pursuant to the exercise of the Option in immediately
available funds by wire transfer to a bank account designated by Issuer and
(ii) present and surrender this Agreement to Issuer at its principal executive
offices, provided that the failure or refusal of the Issuer to designate such a
bank account or accept surrender of this Agreement shall not preclude the
Holder from exercising the Option.
(g)At such closing, simultaneously with the delivery of immediately
available funds as provided in subsection (f) of this Section 2, Issuer shall
deliver to the Holder a certificate or certificates representing
the number of shares of Common Stock purchased by the Holder and, if the Option
should be exercised in part only, a new Option evidencing the rights of the
Holder thereof to purchase the balance of the shares purchasable hereunder.
(h)Certificates for Common Stock delivered at a closing hereunder may be
endorsed with a restrictive legend that shall read substantially as follows:
"The transfer of the shares represented by this certificate is
subject to certain provisions of an agreement between the registered
holder hereof and Issuer and to resale restrictions arising under the
Securities Act of 1933, as amended. A copy of such agreement is on file
at the principal office of Issuer and will be provided to the holder
hereof without charge upon receipt by Issuer of a written request
therefor."
It is understood and agreed that: (i) the reference to the resale
restrictions of the Securities Act of 1933, as amended (the "1933 Act") in the
above legend shall be removed by delivery of substitute certificate(s) without
such reference if the Holder shall have delivered to Issuer a copy of a letter
from the staff of the SEC, or an opinion of counsel, in form and substance
reasonably satisfactory to Issuer, to the effect that such legend is not
required for purposes of the 1933 Act; (ii) the reference to the provisions of
this Agreement in the above legend shall be removed by delivery of substitute
certificate(s) without such reference if the shares have been sold or
transferred in compliance with the provisions of this Agreement and under
circumstances that do not require the retention of such reference in the
opinion of counsel to the Holder; and (iii) the legend shall be removed in its
entirety if the conditions in the preceding clauses (i) and (ii) are both
satisfied. In addition, such certificates shall bear any other legend as may be
required by law.
(i) Upon the giving by the Holder to Issuer of the written notice of
exercise of the Option provided for under subsection (e) of this Section 2 and
the tender of the applicable purchase price in immediately available funds, the
Holder shall be deemed to be the holder of record of the shares of Common Stock
issuable upon such exercise, notwithstanding that the stock transfer books of
Issuer shall then be closed or that certificates representing such shares of
Common Stock shall not then be actually delivered to the Holder. Issuer shall
pay all expenses, and any and all United States federal, state and local taxes
and other charges that may be payable in connection with the preparation, issue
and delivery of stock certificates under this Section 2 in the name of the
Holder or its assignee, transferee or designee.
3. Issuer agrees: (i) that it shall at all times maintain, free from
preemptive rights, sufficient authorized but unissued or treasury shares of
Common Stock so that the Option may be exercised without additional
authorization of Common Stock after giving effect to all other options,
warrants, convertible securities and other rights to purchase Common Stock;
(ii) that it will not, by charter amendment or through reorganization,
consolidation, merger, dissolution or sale of assets, or by any other voluntary
act, avoid or seek to avoid the observance or performance of any of the
covenants, stipulations or conditions to be observed or performed hereunder by
Issuer; (iii) promptly to take all action as may from time to time be required
(including (x) complying with all applicable premerger notification, reporting
and waiting period requirements specified in 15 U.S.C. Section 18a and
regulations promulgated thereunder and (y) in the event, under the Bank Holding
Company Act of 1956, as amended (the "BHCA"), or the Change in Bank Control Act
of 1978, as amended, or any state or other federal banking law, prior approval
of or notice to the Federal Reserve Board or to any state or other federal
regulatory authority is necessary before the Option may be exercised,
cooperating fully with the Holder in preparing such applications or notices and
providing such information to the Federal Reserve Board or such state or other
federal regulatory authority as they may require) in order to permit the Holder
to exercise the Option and Issuer duly and effectively to issue shares of
Common Stock pursuant hereto; and (iv) promptly to take all action provided
herein to protect the rights of the Holder against dilution.
4. This Agreement and the Option granted hereby are exchangeable, without
expense, at the option of the Holder, upon presentation and surrender of this
Agreement at the principal office of Issuer, for other Agreements providing for
Options of different denominations entitling the holder thereof to purchase, on
the
same terms and subject to the same conditions as are set forth herein, in the
aggregate the same number of shares of Common Stock purchasable hereunder. The
terms "Agreement" and "Option" as used herein include any Agreements and
related Options for which this Agreement (and the Option granted hereby) may be
exchanged. Upon receipt by Issuer of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Agreement, and (in the case
of loss, theft or destruction) of reasonably satisfactory indemnification, and
upon surrender and cancellation of this Agreement, if mutilated, Issuer will
execute and deliver a new Agreement of like tenor and date. Any such new
Agreement executed and delivered shall constitute an additional contractual
obligation on the part of Issuer, whether or not the Agreement so lost, stolen,
destroyed or mutilated shall at any time be enforceable by anyone.
5. In addition to the adjustment in the number of shares of Common Stock
that are purchasable upon exercise of the Option pursuant to Section 1 of this
Agreement, the number of shares of Common Stock purchasable upon the exercise
of the Option and the Option Price shall be subject to adjustment from time to
time as provided in this Section 5.
(a) In the event of any change in, or distributions in respect of, the
Common Stock by reason of stock dividends, split-ups, mergers,
recapitalizations, combinations, subdivisions, conversions, exchanges of shares
or the like, the type and number of shares of Common Stock purchasable upon
exercise hereof shall be appropriately adjusted and proper provision shall be
made so that, in the event that any additional shares of Common Stock are to be
issued or otherwise become outstanding as a result of any such change (other
than pursuant to an exercise of the Option), the number of shares of Common
Stock that remain subject to the Option shall be increased so that, after such
issuance and together with shares of Common Stock previously issued pursuant to
the exercise of the Option (as adjusted on account of any of the foregoing
changes in the Common Stock), it will equal 24.9% of the number of shares of
Common Stock then issued and outstanding on a fully-diluted basis.
(b) Whenever the number of shares of Common Stock purchasable upon
exercise hereof is adjusted as provided in this Section 5, the Option Price
shall be adjusted by multiplying the Option Price by a fraction, the numerator
of which shall be equal to the number of shares of Common Stock purchasable
prior to the adjustment and the denominator of which shall be equal to the
number of shares of Common Stock purchasable after the adjustment.
6. Upon the occurrence of a Subsequent Triggering Event that occurs prior to
an Exercise Termination Event, Issuer shall, at the request of Grantee
delivered within twelve (12) months (or such later period as provided in
Section 10) of such Subsequent Triggering Event (whether on its own behalf or
on behalf of any subsequent holder of this Option (or part thereof) or any of
the shares of Common Stock issued pursuant hereto), promptly prepare, file and
keep current a registration statement under the 1933 Act covering any shares
issued and issuable pursuant to this Option and shall use its reasonable best
efforts to cause such registration statement to become effective and remain
current in order to permit the sale or other disposition of any shares of
Common Stock issued upon total or partial exercise of this Option ("Option
Shares") in accordance with any plan of disposition requested by Grantee.
Issuer will use its reasonable best efforts to cause such registration
statement promptly to become effective and then to remain effective for such
period not in excess of 180 days from the day such registration statement first
becomes effective or such shorter time as may be reasonably necessary to effect
such sales or other dispositions. Grantee shall have the right to demand two
such registrations. The Issuer shall bear the costs of such registrations
(including, but not limited to, Issuer's attorneys' fees, printing costs and
filing fees, except for underwriting discounts or commissions, brokers' fees
and the fees and disbursements of Grantee's counsel related thereto). The
foregoing notwithstanding, if, at the time of any request by Grantee for
registration of Option Shares as provided above, Issuer is in registration with
respect to an underwritten public offering by Issuer of shares of Common Stock,
and if in the good faith judgment of the managing underwriter or managing
underwriters, or, if none, the sole underwriter or underwriters, of such
offering the offer and sale of the Option Shares would interfere with the
successful marketing of the shares of Common Stock offered by Issuer, the
number of Option Shares otherwise to be covered in the registration statement
contemplated hereby may be reduced; provided, however, that after any
such required reduction the number of Option Shares to be included in such
offering for the account of the Holder shall constitute at least 20% of the
total number of shares to be sold by the Holder and Issuer in the aggregate;
and provided further, however, that if such reduction occurs, then Issuer shall
file a registration statement for the balance as promptly as practicable
thereafter as to which no reduction pursuant to this Section 6 shall be
permitted or occur and the Holder shall thereafter be entitled to one
additional registration and the twelve (12) month period referred to in the
first sentence of this section shall be increased to twenty-four (24) months.
Each such Holder shall provide all information reasonably requested by Issuer
for inclusion in any registration statement to be filed hereunder. If requested
by any such Holder in connection with such registration, Issuer shall become a
party to any underwriting agreement relating to the sale of such shares, but
only to the extent of obligating itself in respect of representations,
warranties, indemnities and other agreements customarily included in such
underwriting agreements for Issuer. Upon receiving any request under this
Section 6 from any Holder, Issuer agrees to send a copy thereof to any other
person known to Issuer to be entitled to registration rights under this Section
6, in each case by promptly mailing the same, postage prepaid, to the address
of record of the persons entitled to receive such copies. Notwithstanding
anything to the contrary contained herein, in no event shall the number of
registrations that Issuer is obligated to effect be increased by reason of the
fact that there shall be more than one Holder as a result of any assignment or
division of this Agreement.
7. (a) At any time after the occurrence of a Repurchase Event (as defined
below) (i) at the request of the Holder, delivered prior to an Exercise
Termination Event (or such later period as provided in Section 10), Issuer (or
any successor thereto) shall repurchase the Option from the Holder at a price
(the "Option Repurchase Price") equal to the amount by which (A) the
market/offer price (as defined below) exceeds (B) the Option Price, multiplied
by the number of shares for which this Option may then be exercised and (ii) at
the request of the owner of Option Shares from time to time (the "Owner"),
delivered prior to an Exercise Termination Event (or such later period as
provided in Section 10), Issuer (or any successor thereto) shall repurchase
such number of the Option Shares from the Owner as the Owner shall designate at
a price (the "Option Share Repurchase Price") equal to the market/offer price
multiplied by the number of Option Shares so designated. The term "market/offer
price" shall mean the highest of (i) the price per share of Common Stock at
which a tender or exchange offer therefor has been made, (ii) the price per
share of Common Stock to be paid by any third party pursuant to an agreement
with Issuer, (iii) the highest closing price for shares of Common Stock within
the six-month period immediately preceding the date the Holder gives notice of
the required repurchase of this Option or the Owner gives notice of the
required repurchase of Option Shares, as the case may be, or (iv) in the event
of a sale of all or any substantial part of Issuer's assets or deposits, the
sum of the net price paid in such sale for such assets or deposits and the
current market value of the remaining net assets of Issuer as determined by a
nationally recognized investment banking firm selected by the Holder or the
Owner, as the case may be, and reasonably acceptable to Issuer, divided by the
number of shares of Common Stock of Issuer outstanding at the time of such
sale. In determining the market/offer price, the value of consideration other
than cash shall be determined by a nationally recognized investment banking
firm selected by the Holder or Owner, as the case may be, and reasonably
acceptable to Issuer.
(b) The Holder and the Owner, as the case may be, may exercise its right
to require Issuer to repurchase the Option and any Option Shares pursuant to
this Section 7 by surrendering for such purpose to Issuer, at its principal
office, a copy of this Agreement or certificates for Option Shares, as
applicable, accompanied by a written notice or notices stating that the Holder
or the Owner, as the case may be, elects to require Issuer to repurchase this
Option and/or the Option Shares in accordance with the provisions of this
Section 7. As promptly as practicable, and in any event within five business
days after the surrender of the Option and/or certificates representing Option
Shares and the receipt of such notice or notices relating thereto, Issuer shall
deliver or cause to be delivered to the Holder the Option Repurchase Price
and/or to the Owner the Option Share Repurchase Price therefor or the portion
thereof that Issuer is not then prohibited under applicable law and regulation
from so delivering.
(c) To the extent that Issuer is prohibited under applicable law or
regulation, or as a consequence of administrative policy, from repurchasing the
Option and/or the Option Shares in full, Issuer shall
immediately so notify the Holder and/or the Owner and thereafter deliver or
cause to be delivered, from time to time, to the Holder and/or the Owner, as
appropriate, the portion of the Option Repurchase Price and the Option Share
Repurchase Price, respectively, that it is no longer prohibited from
delivering, within five business days after the date on which Issuer is no
longer so prohibited; provided, however, that if Issuer at any time after
delivery of a notice of repurchase pursuant to paragraph (b) of this Section 7
is prohibited under applicable law or regulation, or as a consequence of
administrative policy, from delivering to the Holder and/or the Owner, as
appropriate, the Option Repurchase Price and the Option Share Repurchase Price,
respectively, in full (and Issuer hereby undertakes to use its best efforts to
obtain (and to take all action necessary to obtain) all required regulatory and
legal approvals and to file any required notices as promptly as practicable in
order to accomplish such repurchase), the Holder or Owner may revoke its notice
of repurchase of the Option and/or the Option Shares whether in whole or to the
extent of the prohibition, whereupon, in the latter case, Issuer shall promptly
(i) deliver to the Holder and/or the Owner, as appropriate, that portion of the
Option Repurchase Price and/or the Option Share Repurchase Price that Issuer is
not prohibited from delivering; and (ii) deliver, as appropriate, either (A) to
the Holder, a new Agreement evidencing the right of the Holder to purchase that
number of shares of Common Stock obtained by multiplying the number of shares
of Common Stock for which the surrendered Agreement was exercisable at the time
of delivery of the notice of repurchase by a fraction, the numerator of which
is the Option Repurchase Price less the portion thereof theretofore delivered
to the Holder and the denominator of which is the Option Repurchase Price,
and/or (B) to the Owner, a certificate for the Option Shares it is then so
prohibited from repurchasing. If an Exercise Termination Event shall have
occurred prior to the date of the notice by Issuer described in the first
sentence of this subsection (c), or shall be scheduled to occur at any time
before the expiration of a period ending on the thirtieth day after such date,
the Holder shall nonetheless have the right to exercise the Option until the
expiration of such 30-day period.
(d) For purposes of this Section 7, a "Repurchase Event" shall be deemed
to have occurred upon the occurrence of any of the following events or
transactions after the date hereof:
(i) the acquisition by any person (other than Grantee or any Grantee
Subsidiary) of beneficial ownership of 50% or more of the then
outstanding Common Stock; or
(ii) the consummation of any Acquisition Transaction described in
Section 2(b)(i) hereof, except that the percentage referred to in
clause (z) shall be 50%.
8. (a) In the event that prior to an Exercise Termination Event, Issuer
shall enter into an agreement (i) to consolidate with or merge into any person,
other than Grantee or a Grantee Subsidiary, or engage in a plan of exchange
with any person, other than Grantee or a Grantee Subsidiary and Issuer shall
not be the continuing or surviving corporation of such consolidation or merger
or the acquirer in such plan of exchange, (ii) to permit any person, other than
Grantee or a Grantee Subsidiary, to merge into Issuer or be acquired by Issuer
in a plan of exchange and Issuer shall be the continuing or surviving or
acquiring corporation, but, in connection with such merger or plan of exchange,
the then outstanding shares of Common Stock shall be changed into or exchanged
for stock or other securities of any other person or cash or any other property
or the then outstanding shares of Common Stock shall after such merger or plan
of exchange represent less than 50% of the outstanding shares and share
equivalents of the merged or acquiring company, or (iii) to sell or otherwise
transfer all or a substantial part of its or the Issuer Subsidiary's assets or
deposits to any person, other than Grantee or a Grantee Subsidiary, then, and
in each such case, the agreement governing such transaction shall make proper
provision so that the Option shall, upon the consummation of any such
transaction and upon the terms and conditions set forth herein, be converted
into, or exchanged for, an option (the "Substitute Option"), at the election of
the Holder, of either (x) the Acquiring Corporation (as hereinafter defined) or
(y) any person that controls the Acquiring Corporation.
(b) The following terms have the meanings indicated:
(i) "Acquiring Corporation" shall mean (i) the continuing or
surviving person of a consolidation or merger with Issuer (if other
than Issuer), (ii) the acquiring person in a plan of
exchange in which Issuer is acquired, (iii) the Issuer in a merger or
plan of exchange in which Issuer is the continuing or surviving or
acquiring person, and (iv) the transferee of all or a substantial part
of Issuer's assets or deposits (or the assets or deposits of the Issuer
Subsidiary).
(ii) "Substitute Common Stock" shall mean the common stock issued by
the issuer of the Substitute Option upon exercise of the Substitute
Option.
(iii) "Assigned Value" shall mean the market/offer price, as defined
in Section 7.
(iv) "Average Price" shall mean the average closing price of a share
of the Substitute Common Stock for one year immediately preceding the
consolidation, merger or sale in question, but in no event higher than
the closing price of the shares of Substitute Common Stock on the day
preceding such consolidation, merger or sale; provided that if Issuer
is the issuer of the Substitute Option, the Average Price shall be
computed with respect to a share of common stock issued by the person
merging into Issuer or by any company which controls or is controlled
by such person, as the Holder may elect.
(c) Subject to paragraph (d) of this Section 8, the Substitute Option
shall have the same terms as the Option, provided that if the terms of the
Substitute Option cannot, for legal reasons, be the same as the Option, such
terms shall be as similar as possible and in no event less advantageous to the
Holder. The issuer of the Substitute Option shall also enter into an agreement
with the then Holder or Holders of the Substitute Option in substantially the
same form as this Agreement (after giving effect for such purpose to the
provisions of Section 9), which agreement shall be applicable to the Substitute
Option.
(d) The Substitute Option shall be exercisable for such number of shares
of Substitute Common Stock as is equal to the Assigned Value multiplied by the
number of shares of Common Stock for which the Option was exercisable
immediately prior to the event described in the first sentence of Section 8(a),
divided by the Average Price. The exercise price of the Substitute Option per
share of Substitute Common Stock shall then be equal to the Option Price
multiplied by a fraction, the numerator of which shall be the number of shares
of Common Stock for which the Option was exercisable immediately prior to the
event described in the first sentence of Section 8(a) and the denominator of
which shall be the number of shares of Substitute Common Stock for which the
Substitute Option is exercisable.
(e) In no event, pursuant to any of the foregoing paragraphs, shall the
Substitute Option be exercisable for more than 19.9% of the shares of
Substitute Common Stock outstanding prior to exercise of the Substitute Option.
In the event that the Substitute Option would be exercisable for more than
19.9% of the shares of Substitute Common Stock outstanding to exercise but for
this clause (e), the issuer of the Substitute Option (the "Substitute Option
Issuer") shall make a cash payment to Holder equal to the excess of (i) the
value of the Substitute Option without giving effect to the limitation in this
clause (e) over (ii) the value of the Substitute Option after giving effect to
the limitation in this clause (e). This difference in value shall be determined
by a nationally recognized investment banking firm selected by the Holder.
(f) Issuer shall not enter into any transaction described in subsection
(a) of this Section 8 unless the Acquiring Corporation and any person that
controls the Acquiring Corporation assume in writing all the obligations of
Issuer hereunder. This Section 8 shall take precedence over the second sentence
of Section 5.
9. (a) At the request of the holder of the Substitute Option (the
"Substitute Option Holder"), the issuer of the Substitute Option (the
"Substitute Option Issuer") shall repurchase the Substitute Option from the
Substitute Option Holder at a price (the "Substitute Option Repurchase Price")
equal to the amount by which (i) the Highest Closing Price (as hereinafter
defined) exceeds (ii) the exercise price of the Substitute Option, multiplied
by the number of shares of Substitute Common Stock for which the Substitute
Option may then be exercised, and at the request of the owner (the "Substitute
Share Owner") of shares of Substitute Common Stock (the "Substitute Shares"),
the Substitute Option Issuer shall repurchase the Substitute Shares at a price
(the "Substitute Share Repurchase Price") equal to the Highest Closing Price
multiplied by the number of
Substitute Shares so designated. The term "Highest Closing Price" shall mean
the highest closing price for shares of Substitute Common Stock within the six-
month period immediately preceding the date the Substitute Option Holder gives
notice of the required repurchase of the Substitute Option or the Substitute
Share Owner gives notice of the required repurchase of the Substitute Shares,
as applicable.
(b) The Substitute Option Holder and the Substitute Share Owner, as the
case may be, may exercise its respective rights to require the Substitute
Option Issuer to repurchase the Substitute Option and the Substitute Shares
pursuant to this Section 9 by surrendering for such purpose to the Substitute
Option Issuer, at its principal office, the agreement for such Substitute
Option (or, in the absence of such an agreement, a copy of this Agreement)
and/or certificates for Substitute Shares accompanied by a written notice or
notices stating that the Substitute Option Holder or the Substitute Share
Owner, as the case may be, elects to require the Substitute Option Issuer to
repurchase the Substitute Option and/or the Substitute Shares in accordance
with the provisions of this Section 9. As promptly as practicable and in any
event within five business days after the surrender of the Substitute Option
and/or certificates representing Substitute Shares and the receipt of such
notice or notices relating thereto, the Substitute Option Issuer shall deliver
or cause to be delivered to the Substitute Option Holder the Substitute Option
Repurchase Price and/or to the Substitute Share Owner the Substitute Share
Repurchase Price therefor or the portion thereof which the Substitute Option
Issuer is not then prohibited under applicable law and regulation from so
delivering.
(c) To the extent that the Substitute Option Issuer is prohibited under
applicable law or regulation, or as a consequence of administrative policy,
from repurchasing the Substitute Option and/or the Substitute Shares in part or
in full, the Substitute Option Issuer shall immediately so notify the
Substitute Option Holder and/or the Substitute Share Owner and thereafter
deliver or cause to be delivered, from time to time, to the Substitute Option
Holder and/or the Substitute Share Owner, as appropriate, the portion of the
Substitute Option Repurchase Price and/or the Substitute Share Repurchase
Price, respectively, which it is no longer prohibited from delivering, within
five (5) business days after the date on which the Substitute Option Issuer is
no longer so prohibited; provided, however, that if the Substitute Option
Issuer is at any time after delivery of a notice of repurchase pursuant to
subsection (b) of this Section 9 prohibited under applicable law or regulation,
or as a consequence of administrative policy, from delivering to the Substitute
Option Holder and/or the Substitute Share Owner, as appropriate, the Substitute
Option Repurchase Price and the Substitute Share Repurchase Price,
respectively, in full (and the Substitute Option Issuer shall use its best
efforts to receive (and to take all action necessary to receive) all required
regulatory and legal approvals as promptly as practicable in order to
accomplish such repurchase), the Substitute Option Holder and/or Substitute
Share Owner may revoke its notice of repurchase of the Substitute Option or the
Substitute Shares either in whole or to the extent of prohibition, whereupon,
in the latter case, the Substitute Option Issuer shall promptly (i) deliver to
the Substitute Option Holder or Substitute Share Owner, as appropriate, that
portion of the Substitute Option Repurchase Price or the Substitute Share
Repurchase Price that the Substitute Option Issuer is not prohibited from
delivering; and (ii) deliver, as appropriate, either (A) to the Substitute
Option Holder, a new Substitute Option evidencing the right of the Substitute
Option Holder to purchase that number of shares of the Substitute Common Stock
obtained by multiplying the number of shares of the Substitute Common Stock for
which the surrendered Substitute Option was exercisable at the time of delivery
of the notice of repurchase by a fraction, the numerator of which is the
Substitute Option Repurchase Price less the portion thereof theretofore
delivered to the Substitute Option Holder and the denominator of which is the
Substitute Option Repurchase Price, and/or (B) to the Substitute Share Owner, a
certificate for the Substitute Option Shares it is then so prohibited from
repurchasing. If an Exercise Termination Event shall have occurred prior to the
date of the notice by the Substitute Option Issuer described in the first
sentence of this subsection (c), or shall be scheduled to occur at any time
before the expiration of a period ending on the thirtieth day after such date,
the Substitute Option Holder shall nevertheless have the right to exercise the
Substitute Option until the expiration of such 30-day period.
10. Periods for exercise of certain rights hereunder shall be extended to
the extent necessary to obtain all regulatory approvals for the exercise of
such rights (for so long as the Holder, Owner, Substitute Option Holder or
Substitute Share Owner, as the case may be, is using commercially reasonable
efforts to obtain such regulatory approvals), and for the expiration of all
statutory waiting periods.
11. Issuer hereby represents and warrants to Grantee as follows:
(a) Issuer has corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by the Issuer Board
prior to the date hereof and no other corporate proceedings on the part of
Issuer are necessary to authorize this Agreement or to consummate the
transactions so contemplated. This Agreement has been duly and validly executed
and delivered by Issuer.
(b) Issuer has taken all necessary corporate action to authorize and
reserve and to permit it to issue, and at all times from the date hereof
through the termination of this Agreement in accordance with its terms will
have reserved for issuance upon the exercise of the Option, that number of
shares of Common Stock equal to the maximum number of shares of Common Stock at
any time and from time to time issuable hereunder, and all such shares, upon
issuance pursuant thereto, will be duly authorized, validly issued, fully paid,
nonassessable, and will be delivered free and clear of all claims, liens,
encumbrance and security interests and not subject to any preemptive rights.
12. Grantee hereby represents and warrants to Issuer that this Option is not
being, and any Option Shares or other securities acquired by Grantee upon
exercise of the Option will not be, acquired with a view to the public
distribution thereof and will not be transferred or otherwise disposed or
except in a transaction registered or exempt from registration under the 1933
Act.
13. Neither of the parties hereto may assign any of its rights or
obligations under this Agreement or the Option created hereunder to any other
person, without the express written consent of the other party, except that in
the event an Initial Triggering Event shall have occurred prior to an Exercise
Termination Event, Grantee, subject to the express provisions hereof, may
assign in whole or in part its rights and obligations hereunder; provided,
however, that until the date 15 days following the date on which the Federal
Reserve Board has approved an application by Grantee to acquire the shares of
Common Stock subject to the Option, Grantee may not assign its rights under the
Option except in (i) a widely dispersed public distribution, (ii) a private
placement in which no one party acquires the right to purchase in excess of 2%
of the voting shares of Issuer, (iii) an assignment to a single party (e.g., a
broker or investment banker) for the purpose of conducting a widely dispersed
public distribution on Grantee's behalf or (iv) any other manner approved by
the Federal Reserve Board.
14. Each of Grantee and Issuer will use its reasonable best efforts to make
all filings with, and to obtain consents of, all third parties and governmental
authorities necessary to the consummation of the transactions contemplated by
this Agreement, including, without limitation, applying to the Federal Reserve
Board under the BHCA for approval to acquire the shares issuable hereunder, but
Grantee shall not be obligated to apply to state banking authorities for
approval to acquire the shares of Common Stock issuable hereunder until such
time, if ever, as it deems appropriate to do so.
15. (a) Grantee may, at any time following a Repurchase Event and prior to
the occurrence of an Exercise Termination Event (or such later period as
provided in Section 10), relinquish the Option (together with any Option Shares
issued to and then owned by Grantee) to Issuer in exchange for a cash fee equal
to the Surrender Price; provided, however, that Grantee may not exercise its
rights pursuant to this Section 14 if Issuer has repurchased the Option (or any
portion thereof) or any Option Shares pursuant to Section 7. The "Surrender
Price" shall be equal to $4,000,000 (i) plus, if applicable, Grantee's purchase
price with respect to any Option Shares and (ii) minus, if applicable, the sum
of (1) the excess of (A) the net cash amounts, if any, received by Grantee
pursuant to the arms' length sale of Option Shares (or any other securities
into which such
Option Shares were converted or exchanged) to any unaffiliated party, over (B)
Grantee's purchase price of such Option Shares, and (2) the net cash amounts,
if any, received by Grantee pursuant to an arms' length sale of any portion of
the Option sold.
(b) Grantee may exercise its right to relinquish the Option and any
Option Shares pursuant to this Section 14 by surrendering to Issuer, at its
principal office, a copy of this Agreement together with certificates for
Option Shares, if any, accompanied by a written notice stating (i) that Grantee
elects to relinquish the Option and Option Shares, if any, in accordance with
the provisions of this Section 14 and (ii) the Surrender Price. The Surrender
Price shall be payable in immediately available funds on or before the second
business day following receipt of such notice by Issuer.
(c) To the extent that Issuer is prohibited under applicable law or
regulation, or as a consequence of administrative policy, from paying the
Surrender Price to Grantee in full, Issuer shall immediately so notify Grantee
and thereafter deliver or cause to be delivered, from time to time, to Grantee,
the portion of the Surrender Price that it is no longer prohibited from paying,
within five business days after the date on which Issuer is no longer so
prohibited; provided, however, that if Issuer at any time after delivery of a
notice of surrender pursuant to paragraph (b) of this Section 14 is prohibited
under applicable law or regulation, or as a consequence of administrative
policy, from paying to Grantee the Surrender Price in full, (i) Issuer shall
(A) use its best efforts to obtain (and to take all action necessary to obtain)
all required regulatory and legal approvals and to file any required notices as
promptly as practicable in order to make such payments, (B) within five days of
the submission or receipt of any documents relating to any such regulatory and
legal approvals, provide Grantee with copies of the same, and (c) keep Grantee
advised of both the status of any such request for regulatory and legal
approvals, as well as any discussions with any relevant regulatory or other
third party reasonably related to the same and (ii) Grantee may revoke such
notice of surrender by delivery of a notice of revocation to Issuer and, upon
delivery of such notice of revocation, the Exercise Termination Date shall be
extended to a date six months from the date on which the Exercise Termination
Date would have occurred if not for the provisions of this Section 14(c)
(during which period Grantee may exercise any of its rights hereunder,
including any and all rights pursuant to this Section 14).
16. The parties hereto acknowledge that damages would be an inadequate
remedy for a breach of this Agreement by either party hereto and that the
obligations of the parties hereto shall be enforceable by either party hereto
through injunctive or other equitable relief. In connection therewith both
parties waive the posting of any bond or similar requirement.
17. If any term, provision, covenant or restriction contained in this
Agreement is held by a court or a federal or state regulatory agency of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions and covenants and restrictions contained in this
Agreement shall remain in full force and effect, and shall in no way be
affected, impaired or invalidated. If for any reason such court or regulatory
agency determines that the Holder is not permitted to acquire, or Issuer is not
permitted to repurchase pursuant to Section 7, the full number of shares of
Common Stock provided in Section l(a) hereof (as adjusted pursuant to Section
l(b) or Section 5 hereof), it is the express intention of Issuer to allow the
Holder to acquire or to require Issuer to repurchase such lesser number of
shares as may be permissible, without any amendment or modification hereof.
18. All notices, requests, claims, demands and other communications
hereunder shall be deemed to have been duly given when delivered in person, by
fax, telecopy, or by registered or certified mail (postage prepaid, return
receipt requested) at the respective addresses of the parties set forth in the
Merger Agreement.
19. This Agreement shall be governed by and construed in accordance with the
laws of the State of North Carolina, without regard to the conflict of law
principles thereof (except to the extent that mandatory provisions of Federal
law or Florida law are applicable).
20. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which shall constitute one
and the same agreement.
21. Except as otherwise expressly provided herein, each of the parties
hereto shall bear and pay all costs and expenses incurred by it or on its
behalf in connection with the transactions contemplated hereunder, including
fees and expenses of its own financial consultants, investment bankers,
accountants and counsel.
22. Except as otherwise expressly provided herein or in the Merger
Agreement, this Agreement contains the entire agreement between the parties
with respect to the transactions contemplated hereunder and supersedes all
prior arrangements or understandings with respect thereof, written or oral. The
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and permitted
assignees. Nothing in this Agreement, expressed or implied, is intended to
confer upon any party, other than the parties hereto, and their respective
successors except as assignees, any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
herein.
23. Capitalized terms used in this Agreement and not defined herein shall
have the meanings assigned thereto in the Merger Agreement.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its officers thereunto duly authorized, all as of the
date first above written.
COMMERCE NATIONAL CORPORATION.
/s/ Xxx X. Xxxxxx
By: ____________________________________
Name: Xxx X. Xxxxxx
Title:President and
Chief Executive Officer
WACHOVIA CORPORATION
/s/ G. Xxxxxx Xxxxxxxxxxx
By: ____________________________________
Name: G. Xxxxxx Xxxxxxxxxxx
Title:President and
Chief Operating Officer
PLAN OF MERGER
PLAN OF MERGER (this "Plan") of Commerce National Corporation, a Florida
corporation ("Commerce" or the "merged corporation") and Wachovia Corporation,
a North Carolina corporation ("Wachovia" or the "surviving corporation").
ARTICLE I
DEFINITIONS
1.1 Certain Definitions. The following terms are used in this Plan with the
meanings set forth below:
"Commerce Board" means the Board of Directors of Commerce.
"Commerce Common Stock" means the common stock, par value $0.10 per share,
of Commerce.
"Commerce Stock Option" means each outstanding option to purchase shares of
Commerce Common Stock.
"Effective Date" means the effective date of the Merger.
"Effective Time" means the effective time of the Merger.
"Exchange Agent" means an exchange agent appointed by Wachovia.
"FBCA" means the Florida Business Corporation Act.
"Merger" means the merger of Commerce with and into Wachovia.
"Merger Agreement" means the Agreement and Plan of Merger, dated as of March
3, 2000, by and between Commerce and Wachovia.
"Merger Consideration" means the consideration to be issued to holders of
Commerce Common Stock as provided in this Plan.
"NCBCA" means the North Carolina Business Corporation Act.
"New Certificates" has the meaning set forth in Section 3.4.
"NYSE" means the New York Stock Exchange, Inc.
"Old Certificates" has the meaning set forth in Section 3.4.
"Person" means any individual, bank, corporation, partnership, association,
joint-stock company, business trust or unincorporated organization.
"Subsidiary" has the meaning ascribed to it in Rule 1-02 of the Securities
and Exchange Commission's Regulation S-X.
"Surviving Corporation" means Wachovia, as the surviving corporation of the
Merger.
"Treasury Stock" shall mean shares of Commerce Stock held by Commerce or any
of its Subsidiaries or by Wachovia or any of its Subsidiaries, in each case
other than in a fiduciary capacity or as a result of debts previously
contracted in good faith.
"Wachovia Common Stock" means the common stock, par value $5.00 per share,
of Wachovia.
"Wachovia Preferred Stock" means the preferred stock, par value $5.00 per
share, of Wachovia.
"Wachovia Stock" means, collectively, Wachovia Common Stock and Wachovia
Preferred Stock.
ARTICLE II
THE MERGER
2.1. The Merger. (a) At the Effective Time, Commerce shall merge with and
into Wachovia, the separate corporate existence of Commerce shall cease and
Wachovia shall survive and continue to exist as a North Carolina corporation.
Wachovia may at any time prior to the Effective Time change the method of
effecting the combination with Commerce (including, without limitation, the
provisions of this Article II) if and to the extent it deems such change to be
necessary or appropriate; provided, however, that no such change shall (i)
alter or change the amount or kind of Merger Consideration, (ii) adversely
affect the tax treatment of Commerce's stockholders as a result of receiving
the Merger Consideration or (iii) materially impede or delay consummation of
the transactions contemplated by this Agreement. In the event of such an
election, the parties agree to execute an appropriate amendment to this
Agreement in order to reflect such election.
(b) Subject to the satisfaction or waiver of the conditions set forth in
Article IV, the Merger shall become effective upon the occurrence of the filing
in the office of the Secretary of State of the State of Florida of articles of
merger in accordance with Section 607.1105 of the FBCA and the filing in the
office of the Secretary of State of the State of North Carolina of articles of
merger in accordance with Section 55-11-05 of the NCBCA or such later date and
time as may be set forth in such certificate and articles. The Merger shall
have the effects prescribed in the FBCA and the NCBCA.
(c) Articles of Incorporation and By-Laws. The articles of incorporation
and by-laws of Wachovia immediately after the Merger shall be those of Wachovia
as in effect immediately prior to the Effective Time.
(d) Directors and Officers of Wachovia. The directors and officers of
Wachovia immediately after the Merger shall be the directors and officers of
Wachovia immediately prior to the Effective Time, until such time as their
successors shall be duly elected and qualified.
2.2. Effective Date and Effective Time. Subject to the satisfaction or
waiver of the conditions set forth in Article VII, the parties shall cause the
Effective Date to occur on (a) the fifth business day to occur after the last
of the conditions set forth in below shall have been satisfied or waived in
accordance with the terms of the Merger Agreement (or, at the election of
Wachovia, on the last business day of the month in which such day occurs or, if
such last business day occurs on one of the last five business days of such
month, on the last business day of the succeeding month) or (b) such other date
to which the parties may agree in writing.
ARTICLE III
CONSIDERATION; EXCHANGE PROCEDURES
3.1. Merger Consideration. Subject to the provisions of this Plan, at the
Effective Time, automatically by virtue of the Merger and without any action on
the part of any Person:
(a) Outstanding Commerce Common Stock. Each share, excluding Treasury
Stock, of Commerce Common Stock, issued and outstanding immediately prior to
the Effective Time shall become and be converted into the number of shares of
Wachovia Common Stock equal to the Exchange Ratio (as defined in the following
sentence). The "Exchange Ratio" shall mean the number equal to $54.00 divided
by the Wachovia Average Stock Price (rounded to the nearest one-thousandth)
provided that:
(i) if the Wachovia Average Stock Price exceeds $64.125, the Exchange Ratio
shall be .8421; and
(ii) if the Wachovia Average Stock Price is less than $51.30, the Exchange
Ratio shall be 1.0526.
The "Wachovia Average Stock Price" shall be the closing price of Wachovia
Common Stock, as reported by the NYSE Composite Transaction Reporting System
(as reported in The Wall Street Journal or, if not reported therein, in another
authoritative source), for the 15 NYSE trading days immediately preceding the
Effective Date.
(b) Outstanding Wachovia Stock. Each share of Wachovia Stock issued and
outstanding immediately prior to the Effective Time shall remain issued and
outstanding and unaffected by the Merger.
(c) Treasury Stock. Each share of Commerce Common Stock held as Treasury
Stock immediately prior to the Effective Time shall be canceled and retired at
the Effective Time and no consideration shall be issued in exchange therefor.
3.2. Rights as Stockholders; Stock Transfers. At the Effective Time, holders
of Commerce Common Stock shall cease to be, and shall have no rights as,
stockholders of Commerce, other than to receive any dividend or other
distribution with respect to such Commerce Common Stock with a record date
occurring prior to the Effective Time and the consideration provided under this
Article III. After the Effective Time, there shall be no transfers of shares of
Commerce Common Stock on the stock transfer books of Commerce or the Surviving
Corporation.
3.3. Fractional Shares. Notwithstanding any other provision hereof, no
fractional shares of Wachovia Common Stock and no certificates or scrip
therefor, or other evidence of ownership thereof, will be issued in the Merger;
instead, Wachovia shall pay to each holder of Commerce Common Stock who would
otherwise be entitled to a fractional share of Wachovia Common Stock (after
taking into account all Old Certificates delivered by such holder) an amount in
cash (without interest) determined by multiplying such fraction by the closing
price of Wachovia Common Stock, as reported by the NYSE Composite Transactions
Reporting System (as reported in The Wall Street Journal or, if not reported
therein, in another authoritative source), for the NYSE trading day immediately
preceding the Effective Date.
3.4. Exchange Procedures. (a) At or prior to the Effective Time, Wachovia
shall deposit, or shall cause to be deposited, with EquiServe Trust Company,
N.A. (in such capacity, the "Exchange Agent"), for the benefit of the holders
of certificates formerly representing shares of Commerce Common Stock ("Old
Certificates"), for exchange in accordance with this Article III, certificates
representing the shares of Wachovia Common Stock ("New Certificates") and an
estimated amount of cash (such cash and New Certificates, together with any
dividends or distributions with a record date occurring after the Effective
Date with respect thereto (without any interest on any such cash, dividends or
distributions), being hereinafter referred to as the "Exchange Fund") to be
paid pursuant to this Article III in exchange for outstanding shares of
Commerce Common Stock.
(b) As promptly as practicable after the Effective Date, Wachovia shall
send or cause to be sent to each former holder of record of shares of Commerce
Common Stock immediately prior to the Effective Time transmittal materials for
use in exchanging such stockholder's Old Certificates for the consideration set
forth in this Article III. Wachovia shall cause the New Certificates into which
shares of a stockholder's Commerce Common Stock are converted on the Effective
Date and/or any check in respect of any fractional share interests or dividends
or distributions which such person shall be entitled to receive to be delivered
to such stockholder upon delivery to the Exchange Agent of Old Certificates
representing such shares of Commerce Common Stock (or indemnity reasonably
satisfactory to Wachovia and the Exchange Agent, if any of such certificates
are lost, stolen or destroyed) owned by such stockholder. No interest will be
paid on any such cash to be paid in lieu of fractional share interests or in
respect of dividends or distributions that any such person shall be entitled to
receive pursuant to this Article III upon such delivery. Old Certificates
surrendered for exchange by any Commerce Affiliate shall not be exchanged for
New Certificates until Wachovia has received a written agreement from such
person as specified in Section 6.07 of the Merger Agreement.
(c) Notwithstanding the foregoing, neither the Exchange Agent nor any party
hereto shall be liable to any former holder of Commerce Stock for any amount
properly delivered to a public official pursuant to applicable abandoned
property, escheat or similar laws.
(d) At the election of Wachovia, no dividends or other distributions with
respect to Wachovia Common Stock with a record date occurring after the
Effective Time shall be paid to the holder of any unsurrendered Old Certificate
representing shares of Commerce Common Stock converted in the Merger into the
right to receive shares of such Wachovia Common Stock until the holder thereof
shall be entitled to receive New Certificates in exchange therefor in
accordance with the procedures set forth in this Section 3.4, and no such
shares of Commerce Common Stock shall be eligible to vote until the holder of
Old Certificates is entitled to receive New Certificates in accordance with the
procedures set forth in this Section 3.4. After becoming so entitled in
accordance with this Section 3.4, the record holder thereof also shall be
entitled to receive any such dividends or other distributions, without any
interest thereon, which theretofore had become payable with respect to shares
of Wachovia Common Stock such holder had the right to receive upon surrender of
the Old Certificate.
(e) Any portion of the Exchange Fund that remains unclaimed by the
stockholders of Commerce for twelve months after the Effective Time shall be
paid to Wachovia. Any stockholders of Commerce who have not theretofore
complied with this Article III shall thereafter look only to Wachovia for
payment of the shares of Wachovia Common Stock, cash in lieu of any fractional
shares and unpaid dividends and distributions on Wachovia Common Stock
deliverable in respect of each share of Commerce Common Stock such stockholder
holds as determined pursuant to this Agreement, in each case, without any
interest thereon and Wachovia shall make such payment.
3.5. Anti-Dilution Provisions. In the event Wachovia changes (or establishes
a record date for changing) the number of shares of Wachovia Common Stock
issued and outstanding prior to the Effective Date as a result of a stock
split, stock dividend, recapitalization or similar transaction with respect to
the outstanding Wachovia Common Stock and the record date therefor shall be
prior to the Effective Date, the Exchange Ratio shall be proportionately
adjusted.
3.6. Options. At the Effective Time, each outstanding Commerce Stock Option,
whether vested or unvested, shall be converted into an option to acquire, on
the same terms and conditions as were applicable under such Commerce Stock
Option, the number of shares of Wachovia Common Stock equal to (a) the number
of shares of Commerce Common Stock subject to the Commerce Stock Option,
multiplied by (b) the Exchange Ratio (such product rounded down to the nearest
whole number) (a "Replacement Option"), at an exercise price per share (rounded
up to the nearest whole cent) equal to (y) the aggregate exercise price for the
shares of Commerce Common Stock which were purchasable pursuant to such
Commerce Stock Option divided by (z) the number of full shares of Wachovia
Common Stock subject to such Replacement Option in accordance with the
foregoing. Notwithstanding the foregoing, each Commerce Stock Option which is
intended to be an "incentive stock option" (as defined in Section 422 of the
Code) shall be adjusted in accordance with the requirements of Section 424 of
the Code. At or prior to the Effective Time, Commerce shall take all action, if
any, necessary with respect to the Commerce Stock Plans to permit the
replacement of the outstanding Commerce Stock Options by Wachovia pursuant to
this Section. At the Effective Time, Wachovia shall assume the Commerce Stock
Plans; provided, that such assumption shall be only in respect of the
Replacement Options and that Wachovia shall have no obligation with respect to
any awards under the Commerce Stock Plans other than the Replacement Options
and shall have no obligation to make any additional grants or awards under such
assumed Commerce Stock Plans.
ARTICLE IV
CONDITIONS TO THE MERGER
4.1. Consummation of the Merger is subject to the conditions set forth in
Article VII of the Merger Agreement.
ARTICLE V
TERMINATION
5.1. This Plan may be terminated, and the Merger may be abandoned prior to
the Effective Time as provided in Article VIII of the Merger Agreement.
