EXHIBIT 1
AGREEMENT AND PLAN OF MERGER
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THIS AGREEMENT AND PLAN OF MERGER (hereinafter called "Agreement"),
made and entered into as of the 22nd day of February, 2001, by and between
WESBANCO, INC., a West Virginia corporation, with its principal place of
business located at Bank Plaza, Wheeling, West Virginia (hereinafter called
"Wesbanco"), party of the first part, AMERICAN BANCORPORATION, an Ohio
corporation, with its principal place of business located at 0000 Xxxx Xxxxxx,
Xxxxxxxx, Xxxx Xxxxxxxx, 00000, (hereinafter called "American") party of the
second part, AB CORPORATION (hereinafter called "AB"), a corporation to be
formed under the laws of the State of West Virginia by Wesbanco as its
wholly-owned subsidiary solely for the purpose of effecting the acquisition
contemplated by this Agreement, party of the third part, (effective as of its
organization and execution of this Agreement) and WESBANCO BANK, INC., a West
Virginia banking corporation, with its principal place of business located at
Xxx Xxxx Xxxxx, Xxxxxxxx, Xxxx Xxxxxxxx, 00000, party of the fourth part
(hereinafter called "Bank").
WHEREAS, Wesbanco is a West Virginia corporation duly organized and
validly existing under the laws of the State of West Virginia, and is a
registered bank holding company under the Bank Holding Company Act of 1956, as
amended, and
WHEREAS, American is an Ohio corporation duly organized and validly
existing under the laws of the State of Ohio, and is a registered bank holding
company under the Bank Holding Company Act of 1956, as amended, which owns, as
its principal subsidiary, Wheeling National Bank, a national banking association
(hereinafter also referred to as "Subsidiary"), and
WHEREAS, AB will be a corporation duly organized and validly existing
under the laws of the State of West Virginia which corporation shall be
organized to effect the terms and conditions of this Agreement, and
WHEREAS, the Board of Directors of Wesbanco, by a majority vote of all
the members thereof, has approved this Agreement and has authorized the
execution hereof in counterparts; and subject to the terms hereof will direct
that it be submitted to its shareholders; the Board of Directors of AB shall,
prior to
the execution hereof by AB, have by a majority vote of all of the members and
shareholders thereof, approved this Agreement and authorized the execution
hereof in counterparts, all upon the issuance of AB's Charter as hereinafter
provided, and
WHEREAS, Wesbanco desires to acquire American and the Board of
Directors of American has determined that, subject to all of the conditions of
this Agreement, including but not limited to the requirement that certain tax
rulings and fairness opinions be obtained, it would be in the best interests of
American and its shareholders for American to enter into this Agreement to
become affiliated with Wesbanco, and
WHEREAS, it is proposed that Wesbanco, American, AB and Bank enter into
this Agreement whereby American will merge with and into AB (the "Merger") and
the outstanding shares of common stock of American, without par value,
("American Common Stock"), will be converted into shares of common stock of
Wesbanco, par value $2.0833, ("Wesbanco Common Stock") at an exchange ratio of
1.1 shares of Wesbanco Common Stock for each share of American Common Stock
exchanged therefor, and the Subsidiary will be merged with and into Bank with
Bank as the surviving corporation (the "Bank Merger").
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants hereinafter set forth, and in accordance with the provisions of
applicable law, and intending to be legally bound hereby, the parties hereto do
hereby agree as follows:
SECTION 1
AB
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1.1 FORMATION. Wesbanco shall promptly cause AB to be duly organized
as a business corporation under the laws of the State of West Virginia. AB will
be wholly-owned by Wesbanco at all times through the closing of the transactions
contemplated by this Agreement.
1.2 CONDUCT OF BUSINESS. Wesbanco shall not permit AB to conduct any
business operations other than such activities which are necessary to consummate
the merger contemplated in the Agreement.
1.3 EXECUTION OF AGREEMENT. Promptly after the organization of AB,
Wesbanco shall cause AB to take all necessary and proper action to ratify,
approve, adopt and execute the Agreement and to undertake the performance of all
of the terms and conditions of the Agreement to be performed by AB.
1.4 VOTING OF AB SHARES. Promptly after the organization of AB,
Wesbanco, as sole shareholder of AB, shall vote all of the shares of AB in favor
of the Merger.
SECTION 2
THE MERGER
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2.1 THE MERGER. At the Effective Time (as defined in Section 2.5),
subject to the provisions of this Agreement, American shall merge with AB, under
the charter of AB. AB shall be the surviving corporation (hereinafter also
called the "Surviving Corporation").
2.2 EFFECT OF MERGER. At the Effective Time, the corporate existence
of American, with all of its purposes, powers and objects, and all of its
rights, assets, liabilities and obligations, shall cease. AB as the Surviving
Corporation shall continue unaffected and unimpaired by the Merger. AB as the
Surviving Corporation shall also succeed to all of the rights, assets,
liabilities and obligations of American in accordance with the West Virginia
Corporations Act ("WVCA"). Upon the Effective Date, (as defined in Section 12.5
hereof), the separate existence and corporate organization of American shall
cease.
2.3 CLOSING. Wesbanco, American and AB will jointly request the
Secretary of State of West Virginia to issue a Certificate of Merger on the date
of the closing described in Section 12.4 hereof (the "Closing" and the "Closing
Date").
2.4 AMERICAN'S OBLIGATIONS. American shall at any time, or from time
to time, as and when requested by the Surviving Corporation, or by its
successors and assigns, execute and deliver, or cause to be executed and
delivered in its name by its last acting officers, or by the corresponding
officers of the Surviving Corporation, all such conveyances, assignments,
transfers, deeds, or other instruments, and shall take or cause to be taken such
further or other action as the Surviving Corporation, its successors or assigns,
may deem necessary or desirable in order to evidence the transfer, vesting or
devolution of any property, right, privilege or franchise or to vest or perfect
in or confirm to the Surviving Corporation, its successors and assigns, title to
and possession of all the property, rights, privileges, powers, immunities,
franchises and interests referred to in this Agreement and otherwise to carry
out the intent and purposes hereof, all at the expense of the Surviving
Corporation.
2.5 ARTICLES OF MERGER. Subject to the terms and conditions herein
provided, Articles of Merger, incorporating this Agreement, shall be executed to
comply with the applicable filing requirements of the WVCA at the Closing and on
the Closing Date. On the Closing Date, such Articles of Merger shall
be filed with the Secretary of State of the State of West Virginia, who will
duly issue a Certificate of Merger. The Surviving Corporation shall record said
Certificate of Merger in the office of the Clerk of the County Commission of
Ohio County. The Merger shall become effective on the date (the "Effective
Date") and at the time (which time is hereinafter called the "Effective Time")
when such Certificate of Merger is issued by the Secretary of State.
SECTION 3
THE BANK MERGER
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3.1 THE BANK MERGER. At the Effective Time of the Bank Merger (as
defined in Section 3.5), subject to the provisions of this Agreement, the
Subsidiary shall merge with the Bank, under the charter of Bank. Bank shall be
the surviving corporation (hereinafter also called the "Surviving Bank
Corporation").
3.2 EFFECT OF MERGER. At the Effective Time, the corporate existence
of Bank, with all of its purposes, powers and objects, and all of its rights,
assets, liabilities and obligations, shall continue unaffected and unimpaired by
the Merger, and Bank as the Surviving Bank Corporation shall continue to be
governed by the laws of the State of West Virginia. Bank as the Surviving Bank
Corporation shall also succeed to all of the rights, assets, liabilities and
obligations of the Subsidiary in accordance with the WVCA. Upon the Effective
Date of the Bank Merger (as defined in Section 12.5 hereof, the separate
existence and corporate organization of the Subsidiary shall cease. This section
shall not be construed, except as otherwise specifically provided herein, (i) to
limit the ability of Wesbanco and its subsidiaries to terminate the employment
of any employee of the Subsidiary or to review employee benefit programs from
time to time and to make such changes as Wesbanco deems appropriate, or (ii) to
require Wesbanco or its subsidiaries to provide employees or former employees of
the Subsidiary with post-retirement medical benefits.
3.3 CLOSING. Bank and the Subsidiary will jointly request the
Secretary of State of West Virginia to issue a Certificate of Merger on the date
of the closing described in Section 12.4 hereof (the "Closing" and the "Closing
Date").
3.4 SUBSIDIARY'S OBLIGATIONS. The Subsidiary shall at any time, or
from time to time, as and when requested by the Surviving Bank Corporation, or
by its successors and assigns, execute and deliver,
or cause to be executed and delivered in its name by its last acting officers,
or by the corresponding officers of the Surviving Bank Corporation, all such
conveyances, assignments, transfers, deeds, or other instruments, and shall take
or cause to be taken such further or other action as the Surviving Bank
Corporation, its successors or assigns, may deem necessary or desirable in order
to evidence the transfer, vesting or devolution of any property, right,
privilege or franchise or to vest or perfect in or confirm to the Surviving Bank
Corporation, its successors and assigns, title to and possession of all the
property, rights, privileges, powers, immunities, franchises and interests
referred to in this Agreement and otherwise to carry out the intent and purposes
hereof, all at the expense of the Surviving Bank Corporation.
3.5 ARTICLES OF MERGER. Subject to the terms and conditions herein
provided, Articles of Merger, incorporating this Agreement, shall be executed to
comply with the applicable filing requirements of the WVCA at the Closing and on
the Closing Date. On the Closing Date, such Articles of Merger shall be filed
with the Secretary of State of the State of West Virginia, who will duly issue a
Certificate of Merger. The Surviving Bank Corporation shall record said
Certificate of Merger in the office of the Clerk of the County Commission of
Ohio County. The Merger shall become effective on the date (the "Effective
Date") and at the time (which time is hereinafter called the "Effective Time")
when such Certificate of Merger is issued by the Secretary of State.
SECTION 4
ARTICLES OF INCORPORATION;
BYLAWS; BOARD OF DIRECTORS AND OFFICERS
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4.1 AB. The Articles of Incorporation of AB, as organized, shall
constitute the Articles of Incorporation of the Surviving Corporation. The
Bylaws of AB as in effect on the Effective Date shall constitute the Bylaws of
the Surviving Corporation. The directors and officers of AB on the Effective
Date shall become the directors and officers of the Surviving Corporation. Any
vacancy in the Board of Directors or officers may be filled in the manner
provided in the Bylaws of the Surviving Corporation. The directors and officers
shall hold office as prescribed in the Bylaws.
4.2 BANK. The Articles of Incorporation of Bank and the Bylaws of
Bank, as in effect on the Effective Date, shall continue as the Articles of
Incorporation and Bylaws of Bank until the same shall thereafter be altered,
amended or repealed in accordance with law, such Articles of Incorporation or
said Bylaws. The directors and officers of Bank on the Effective Date shall
continue as the directors and
officers of Bank after the Bank Merger and shall hold office as prescribed in
the Bylaws of Bank and applicable law, until their successors shall have been
elected and shall qualify.
4.3 BANK DIRECTORS. Wesbanco covenants and agrees that as of the
Effective Date it will appoint, as additional directors of Bank, Xxxx X.
Xxxxxxx, Xxxxxx X. XxXxxxx, and Xxxxxxx X. XxXxxxx, specifically waiving for
such limited term, its age 70 provision of its Bylaws. Such individuals shall
serve until the annual meeting to be held in April, 2002, at which time the
terms for Xxxx X. Xxxxxxx and Xxxxxx X. XxXxxxx shall expire. At such annual
meeting, Xxxxxxx X. XxXxxxx shall be re-appointed to the Bank Board and shall
serve until his successor shall have been duly elected and qualified.
4.4 WESBANCO DIRECTORS. Wesbanco covenants and agrees that as of the
Effective Date it will appoint, as additional directors of Wesbanco, Xxxxxx X.
XxXxxxx and Xxxxxxx X. Xxxxxxxxx. Such individuals shall serve until the next
annual meeting of shareholders at which time the term of Xxxxxx X. XxXxxxx shall
expire and he shall be replaced by Xxx X. XxXxxxx. Wesbanco shall then include
the said Xxxxxxx X. Xxxxxxxxx and Xxx X. XxXxxxx on the list of nominees for the
position of director for which the Board shall solicit proxies at its next
annual meeting of shareholders until each has served at least a full three year
term. During his term on the Board, the said Xxxxxx X. XxXxxxx shall also be
appointed to the Executive Committee. Wesbanco will take such action under its
Bylaws as is necessary to permit the said Xxxxxx X. XxXxxxx to serve as a
Director until April of 2002 with respect to its age 70 provision.
SECTION 5
SHAREHOLDER APPROVALS
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5.1 AMERICAN SHAREHOLDERS' MEETING. Subject to the receipt by
American of the fairness opinion described in Section 12.3(c) hereof, American
shall submit the Agreement to its shareholders in accordance with the Ohio
Revised Code ("ORC") at a meeting duly called, properly noticed and held at the
earliest practicable date (considering the regulatory approvals required to be
obtained) after the receipt of such opinion. In connection with such meeting,
American shall send to its shareholders the Proxy Statement referred to in
Section 14.1 hereof. Subject to the fiduciary duties of the Board of Directors
of American to American and its shareholders, the Board of Directors of American
shall recommend a vote in favor of the Merger and shall use its best efforts to
obtain at such meeting the affirmative vote of the American shareholders
required to effectuate the transactions contemplated by the Agreement.
5.2 AB AND BANK SHAREHOLDER MEETINGS. AB and Bank shall promptly
submit the Agreement to their shareholder, Wesbanco, for approval in accordance
with the WVCA. Wesbanco agrees to vote, or to cause the vote of, the shares of
such subsidiary corporations in favor of the proposed transactions.
5.3 SUBSIDIARY SHAREHOLDERS MEETING. The Subsidiary shall promptly
submit the Agreement to its shareholder, American, for approval in accordance
with the laws of the United States applicable to National Banks. American agrees
to vote the shares of such subsidiary corporation in favor of the proposed
transaction.
SECTION 6
CONVERSION OF SHARES
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6.1 CONVERSION, EXCHANGE RATIO AND OPTION. The manner of converting
or exchanging the shares of American, AB and the Subsidiary shall be as follows:
(a) Each share of American Common Stock issued and
outstanding immediately prior to the Effective Time, except
shares of American Common Stock issued and held in treasury
of American or beneficially owned by AB or Wesbanco, other
than in a fiduciary capacity by Wesbanco for others, and
shares as to which dissenters' rights are exercised pursuant
to Section 1701.85 of the ORC, shall by virtue of the Merger
and at the Effective Time of the Merger be exchanged for and
become, without action on the part of the holder thereof,
1.1 shares of Wesbanco Common Stock having equal rights and
privileges with respect to all other common stock of
Wesbanco issued and outstanding as of the Effective Time of
the Merger.
(b) No fractional shares of Wesbanco Common Stock will
be issued in connection with the Merger. In lieu thereof
each stockholder of American otherwise entitled to a
fractional share of Wesbanco will receive cash therefore in
an amount based on a value of $22.31 per whole share of
Wesbanco stock, at the time of the exchange.
(c) In the event of any change in Wesbanco Common Stock
by reason of stock dividends, split-ups, mergers,
recapitalizations, combinations,
exchanges of shares (by Wesbanco shareholders) or the like,
the type and number of shares to be issued pursuant to
Section 6.1(a) hereof shall be adjusted proportionately.
(d) Each share of the common stock of the Subsidiary
issued and outstanding immediately prior to the Effective
Date of the Bank Merger shall, on the Effective Date, be
converted into an equal number of issued and outstanding
shares of the Surviving Bank Corporation.
6.2 SHARES OWNED BY AMERICAN, WESBANCO OR AB. Each share of American
Common Stock issued and held in the treasury of American or beneficially owned
by Wesbanco or AB, other than in a fiduciary capacity, at the Effective Time of
the Merger shall be canceled and no cash or other property shall be delivered in
exchange therefore.
6.3 EXCHANGE FOR STOCK. On and after the Effective Date of the
Merger, each holder of American Common Stock, upon presentation and surrender of
a certificate or certificates therefore to Fifth Third Bank (the "Exchange
Agent"), shall be entitled to receive in exchange therefore (i) a certificate or
certificates representing the number of shares of Wesbanco Common Stock to which
he or she is entitled as provided herein, and payment in cash for any fractional
share of common stock which he is entitled to receive, without interest. Until
so presented and surrendered in exchange for a certificate representing Wesbanco
Common Stock, each certificate which represented issued and outstanding shares
of American Common Stock immediately prior to the Effective Time shall be deemed
for all purposes to evidence ownership of the number of shares of Wesbanco
Common Stock into which such shares of stock have been converted pursuant to the
Merger. Until surrender of such certificates in exchange for certificates
representing the converted stock, the holder thereof shall not receive any
dividend or other distribution payable to holders of shares of such stock;
provided, however, that upon surrender of such certificates representing such
converted stock in exchange for certificates representing the stock into which
it has been converted, there shall be paid to the record holder of the
certificate representing Wesbanco Common Stock issued upon such surrender, the
amount of dividends or other distributions (without interest) which theretofore
became payable with respect to the number of shares of such stock represented by
the certificate
or certificates to be issued upon such surrender, together with payment of cash
for any fractional share to which such holder is entitled, as above set forth.
6.4 CLOSING OF STOCK TRANSFER BOOKS. On the Effective Date, the stock
transfer books of American shall be closed, and no shares of American Common
Stock outstanding the day prior to the Effective Date shall thereafter be
transferred.
6.5 DIRECTORS' QUALIFYING SHARES. Immediately upon completion of the
mergers provided for above, the newly elected Directors of Bank shall maintain
at least the minimum number of shares of Wesbanco Common Stock as are required
to be held as directors' qualifying shares under applicable law for membership
on the Board of Directors of Bank.
SECTION 7
DISSENTERS RIGHTS
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7.1 Subject to the rights of Wesbanco and American, as permitted by
Section 12.1(i) of the Agreement, to terminate the Agreement and abandon the
Merger in the event that the number of Objecting Shares (as hereinafter defined)
shall exceed 10% of the shares of American issued and outstanding on the date of
the shareholders' meeting described in Sections 5.1 and 14.1 of this Agreement
and entitled to vote on this Agreement (hereinafter, "Voting Shares"), the
rights and remedies of a dissenting shareholder under the ORC shall be afforded
to any shareholder of American who objects to the Merger in a timely manner in
accordance with the ORC, and who takes the necessary steps in a timely manner in
accordance with the ORC to perfect such shareholder's rights as a dissenting
shareholder (such shareholder being hereafter referred to as a "Dissenting
Shareholder"). The Surviving Corporation will make such payments as are required
to be made to Dissenting Shareholders in the exercise of such rights. The term
"Objecting Shares" shall mean the shares of those holders of American Common
Stock who shall file written demand for payment of the fair cash value with
respect to such shares, in a timely manner in accordance with the ORC, to the
Agreement, shall not vote in favor of the Agreement, and have made written
demand for the fair cash value of such shares within ten (10) days, in
accordance with Section 1701.85 of the ORC. The Objecting Shares held by
shareholders who do not become Dissenting Shareholders shall be converted into
Wesbanco Common Stock in accordance with Section 6 hereof.
SECTION 8
REPRESENTATIONS, WARRANTIES AND COVENANTS OF AMERICAN
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American represents and warrants to and covenants with Wesbanco and AB,
in its own right and with respect to its wholly owned Subsidiary, that:
8.1 ORGANIZATION AND QUALIFICATION OF AMERICAN. American is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Ohio and has the full corporate power and authority to own all
of its properties and assets and to carry on its business as it is now being
conducted, and neither the ownership of its property nor the conduct of its
business requires it or its Subsidiary to be qualified to do business in any
other jurisdiction, except where the failure to be so qualified, considering all
such cases in the aggregate, does not involve a material risk to the business,
properties, financial position or results of operations of American and its
Subsidiary taken as a whole.
8.2 AUTHORIZATION OF AGREEMENT. The Board of Directors of American
has authorized the execution of this Agreement as set forth herein, and subject
to the approval of this Agreement by the shareholders of American as provided in
the Articles of Incorporation and Bylaws of American and applicable Ohio law,
American has the corporate power and is duly authorized to merge with AB
pursuant to this Agreement, and this Agreement is a valid and binding agreement
of American enforceable in accordance with its terms, except as enforceability
may be subject to applicable bankruptcy, insolvency, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and to any
equitable principles limiting the right to obtain specific performance of
certain obligations thereunder.
8.3 NO VIOLATION OF OTHER INSTRUMENTS. Subject to obtaining any
required consent (which consents will be obtained by American prior to Closing),
the execution and delivery of this Agreement do not, and the consummation of the
Merger and the Bank Merger and the transactions contemplated hereby will not,
violate any provisions of American's Articles of Incorporation or Bylaws, or any
provision of, or result in the acceleration of any obligation under, any
material mortgage, deed of trust, note, lien, lease, franchise, license, permit,
agreement, instrument, law, order, arbitration award, judgment or decree or in
the termination of any material license, franchise, lease or permit to which
American or the Subsidiary are a party or by which they are bound. After the
approval of this Agreement by the shareholders of the common stock of American,
the Board of Directors and the shareholders of American will have taken all
corporate
action required by applicable law, the Articles of Incorporation of American,
its Bylaws or otherwise to authorize the execution and delivery of this
Agreement and to authorize the Merger of American and AB pursuant to this
Agreement.
8.4 FINANCIAL STATEMENTS. American has delivered to Wesbanco copies
of its consolidated statements of condition as of December 31, 1999, 1998 and
1997 and the interim period ended September 30, 2000, and its consolidated
statements of income, consolidated statements of changes in shareholders' equity
and consolidated statements of changes in financial position for the three year
period ended December 31, 1999, and the interim period ended September 30, 2000,
together with the notes thereto, accompanied by an audit report relating to the
financial statements for the three years ended December 31, 1999, of KPMG LLP,
Certified Public Accountants. Such statements, together with the related notes
to all of said financial statements, present fairly the consolidated financial
position of American and the Subsidiary and the consolidated results of their
operations as of the dates and for the periods ended on the dates specified in
accordance with generally accepted accounting principles consistently applied
throughout the periods indicated, except as may be specifically disclosed in
those financial statements, including the notes to the financial statements
attached thereto and subject to normal recurring year end adjustments.
8.5 SUBSIDIARIES OF AMERICAN. The principal subsidiary corporation
of American is Wheeling National Bank, St. Xxxxxxxxxxx, Ohio, a national banking
association. Such corporation is duly organized, validly existing, and in good
standing under the laws of the United States, and has the requisite corporate
power and authority to own and lease its properties and to conduct its business
as it is now being conducted and is currently contemplated to be conducted.
American owns 100% of the issued and outstanding stock of such corporation. All
issued and outstanding shares of stock of the Subsidiary have been fully paid,
were validly issued and are nonassessable. Its other subsidiaries include
American Bancservices, Inc., American Mortgages, Inc. ("AMI"), American Banc
Leasing and American Bancdata Corp. American owns 100% of the issued and
outstanding stock of such corporations. American also owns 100% of American
Bancorporation Capital Trust 1 (the "Trust") and AMI owns 51% of Premier
Mortgage Ltd., a joint venture with H.E.R., Inc. All representations, warranties
and covenants of American contained herein apply to such entities unless
otherwise disclosed in the American Disclosure Schedule.
8.6 NO ACTION, ETC. Except as disclosed in the Disclosure Schedule of
American dated not more than 30 days from the date hereof (the "American
Disclosure Schedule"), and as supplemented on the Effective Date, there are no
suits, actions, proceedings, claims or investigations (formal or informal)
pending, or to the knowledge of American, threatened against or relating to
American, its Subsidiary, their business or any of their properties or against
any of their officers or directors (in their capacity as such) in law or in
equity or before any governmental agency. There are no suits, actions,
proceedings, claims or investigations against American, its Subsidiary, their
properties or against any of their officers or directors (in their capacity as
such) in law or in equity or before any governmental agency which, individually
or in the aggregate, would, or is reasonably likely to, if determined adversely
to such party, materially adversely affect the financial condition (present or
prospective), businesses, properties or operations of American or its Subsidiary
or the ability of American or its Subsidiary to conduct their business as
presently conducted or to consummate the transactions contemplated hereby, and
American does not know of any basis for any such action or proceeding. Except as
disclosed in the American Disclosure Schedule, American and its Subsidiary are
not parties or subject to any cease and desist order, agreement or similar
arrangement with a regulatory authority which restricts their operations or
requires any action, and neither American nor its Subsidiary is transacting
business in material violation of any applicable law, ordinance, requirement,
rule, regulation or order.
8.7 CAPITALIZATION. The authorized capital stock of American consists
of 6,700,000 shares, consisting of 6,500,000 shares of common stock, without par
value, of which 3,129,674 shares are duly authorized, validly issued and
outstanding and are fully paid and nonassessable as of the date hereof, and
200,000 shares of preferred stock, par value of $100.00 per share, none of which
are issued or outstanding. There are no options, warrants, calls or commitments
of any kind entitling any person to acquire, or securities convertible into,
American Common Stock, except as provided in the Option Agreement dated the date
hereof to be issued in accordance with this Agreement. American has sufficient
authorized common stock to issue to Wesbanco if the Option Agreement dated the
date hereof is exercised by Wesbanco.
8.8 COPIES OF ALL CONTRACTS, LEASES, ETC. American has furnished, or
provided access, to Wesbanco true and complete copies of all material contracts,
leases and other agreements to which
American is a party or by which it is bound and of all employment, pension,
retirement, stock option, profit sharing, deferred compensation, consultant,
bonus, group insurance or similar plans with respect to any of the directors,
officers or other employees of American and its Subsidiary. A list of all such
documents is set forth in the American Disclosure Schedule, and as updated on
the Effective Date.
8.9 MATERIALLY ADVERSE CONTRACTS. Neither American nor its Subsidiary
is a party to or otherwise bound by any contract, agreement, plan, lease,
license, commitment or undertaking which is materially adverse, materially
onerous or materially harmful to American and its Subsidiary taken as a whole.
There is no breach or default by any party of or with respect to any material
provision of any material contract to which American or its Subsidiary are a
party that would have a material adverse effect upon the financial condition,
operations, results of operations, business or prospects of American and its
Subsidiary taken as a whole.
8.10 UNDISCLOSED LIABILITIES. American and its Subsidiary have no
material liabilities other than those liabilities disclosed on or provided for
in the financial statements delivered pursuant to Section 8.4 hereof, or as
disclosed in the American Disclosure Schedule attached hereto and made a part
hereof.
8.11 TITLE TO PROPERTIES. Except for capitalized leases, liens and
encumbrances not material to the property, liens and encumbrances on property
acquired by American and its Subsidiary in foreclosure of loans and existing at
the time of foreclosure, American and its Subsidiary have good and marketable
title to all of the property, interests in properties and other assets, real and
personal, set forth in their consolidated balance sheet as of December 31, 1999,
and applicable interim period balance sheets or acquired since the date thereof,
other than property disposed of since such dates, subject to no material liens,
mortgages, pledges, encumbrances or charges of any kind except liens reflected
on said balance sheets or set forth in the financial statements delivered
pursuant to Section 8.4 hereof, and all of their material leases are in full
force and effect and neither American nor its Subsidiary is in material default
thereunder. No asset included in the financial statements referred to above has
been valued in such statements in excess of its cost less depreciation or, in
the case of investment securities, in excess of their fair value in accordance
with SFAS No. 115. All material real and tangible personal property owned by
American or its Subsidiary and used or leased by American or its Subsidiary in
their business is in good condition, normal wear and tear excepted, and is in
good operating order. All of such property is insured
against loss for at least 80% of the full replacement value thereof (less
applicable deductibles) by reputable insurance companies authorized to transact
business in the States of West Virginia, Ohio and Pennsylvania.
8.12 PROXY STATEMENT. The Proxy Statement referred to in Section 14
or any amendment or supplement thereto mailed to the holders of the common stock
of American will not contain any untrue statement of a material fact concerning
American or omit to state a material fact concerning American required to be
stated therein or necessary to make the statements contained therein, in light
of the circumstances under which they were made, not misleading with respect to
American, and will comply, as to form in all material respects, with the
requirements of the United States and Ohio securities laws and any other
applicable Blue Sky Laws.
8.13 ERISA. Except as disclosed in the American Disclosure Schedule,
(i) each employee benefit plan subject to Titles I and/or IV of ERISA and
established or maintained for persons including employees or former employees of
American, or its Subsidiary, (hereinafter collectively referred to as "Plan")
has been maintained, operated, administered and funded in accordance with its
terms and with all material provisions of ERISA and the Internal Revenue Code
("IRC") applicable thereto; (ii) no event reportable under Section 4043 of ERISA
has occurred and is continuing with respect to any Plan; (iii) no liability to
PBGC has been incurred with respect to any Plan, other than for premiums due and
payable, and all premiums required to have been paid to PBGC as of the date
hereof have and as of the Effective Date will have been paid; (iv) no Plan has
been terminated, no proceedings have been instituted to terminate any Plan, and
no decision has been made to terminate or institute proceedings to terminate any
Plan; (v) no Plan is a multi-employer Plan; (vi) there has been no cessation of,
and no decision has been made to cease, operations at a facility or facilities
where such cessation could reasonably be expected to result in a separation from
employment of more than 20% of the total number of employees who are
participants under any plan; (vii) each Plan which is an employee pension plan
meets the requirements of "qualified plans" under Section 401(a) of the IRC;
(viii) no accumulated funding deficiency within the meaning of Section 412 of
the IRC or Section 302 of ERISA has been incurred with respect to any Plan
subject to the funding standards of those provisions; (ix) with respect to each
Plan, there have been no prohibited transactions as defined in Section 406 of
ERISA or Section 4975 of the IRC, and there are no actions, suits or claims with
respect to the assets thereof (other than routine claims for benefits) pending
or threatened;
and (x) all required reports, descriptions and notices (including, but not
limited to, Form 5500 Annual Reports, Summary Annual Reports and Summary Plan
Descriptions) have been appropriately filed or distributed with respect to each
Plan.
8.14 EXCHANGE ACT REPORTS. American has delivered to Wesbanco true
and correct copies of its Form 10-K (Annual Report) for the year ended December
31, 1999, and its Form 10-Q (Quarterly Report) for the quarter ended September
30, 2000, as filed with the SEC, all of which were prepared and filed in
accordance with the applicable requirements and regulations of the SEC. American
has also delivered to Wesbanco true and correct copies of all documents and
reports filed by American with the SEC pursuant to the Exchange Act since
January 1, 2000 (the "American Reports"). American has filed and will continue
to file all reports and other documents required to be filed with the SEC
pursuant to the Exchange Act in a timely manner. All of the American Reports
complied in all material respects with the Act and did not contain, as of their
respective dates, any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading in light
of the circumstances under which they were made.
8.15 LABOR DISPUTES. Neither American nor its Subsidiary is directly or
indirectly involved in or threatened with any labor dispute, including, without
limitation, matters regarding discrimination by reason of race, creed, sex,
handicap or national origin, which would materially and adversely affect their
financial condition, assets, businesses or operations taken as a whole. No
collective bargaining representatives represent any employees of American or the
employees of its Subsidiary, and no petition for election of any collective
bargaining representative has been filed and to the knowledge of American and
its Subsidiary no organizational campaign on behalf of any collective bargaining
unit has been undertaken by or on behalf of the employees of American or its
Subsidiary.
8.16 RESERVE FOR POSSIBLE LOAN LOSSES. The reserve for possible loan
losses shown on the consolidated balance sheets of American and its Subsidiary
as of December 31, 1999, and the interim period ending September 30, 2000,
delivered pursuant to this Agreement, which financial statements are attached to
the American Disclosure Schedule, are adequate in all material respects as of
the respective dates thereof.
8.17 TAXES. Except as disclosed in the American Disclosure Schedule:
(a) American and its Subsidiary have timely and
properly filed all Federal Income Tax Returns and all other
federal, state, municipal and other tax returns which they
are required to file, either on their own behalf or on
behalf of their employees or other persons or entities, all
such returns and reports being true and correct and complete
in all material respects, and have paid all taxes, including
penalties and interest, if any, which have become due
pursuant to such returns or reports or forms or pursuant to
assessments received by them;
(b) Neither the Internal Revenue Service nor any other
taxing authority is now asserting against American or its
Subsidiary, or, to its knowledge, threatening to assert
against them, or any of them, any material deficiency or
claim for additional taxes, interest or penalty;
(c) There is no pending or, to its knowledge,
threatened examination of the Federal Income Tax Returns of
American or its Subsidiary, and, except for tax years still
subject to the assessment and collection of additional
Federal income taxes under the three year period of
limitations prescribed in IRC Section 6501(a), no tax year
of American or its Subsidiary remains open to the assessment
and collection of additional material Federal Income Taxes;
and
(d) There is no pending or, to its knowledge,
threatened examination of the Ohio Franchise Tax Returns of
American or its Subsidiary, and, except for tax years still
subject to the assessment and collection of additional
Franchise Taxes under the applicable period of limitations
prescribed in the ORC, no tax year of American or its
Subsidiary remains open to the assessment and collection of
additional Ohio Franchise Taxes.
(e) American, and its Subsidiary, have properly accrued
and reflected on their December 31, 1999, consolidated
balance sheet, delivered pursuant to Section 8.4 hereof, and
have thereafter to the date hereof properly accrued, and
will from the date hereof through the Closing Date properly
accrue, all liabilities for taxes and assessments, and will
timely and properly file all such
federal, state, local and foreign tax returns and reports
and forms which they are required to file, either on their
own behalf or on behalf of their employees or other persons
or entities, all such returns and reports and forms to be
true and correct and complete in all respects, and will pay
or cause to be paid when due all taxes, including penalties
and interest, if any, which have become due pursuant to such
returns or reports or forms or pursuant to assessments
received by them, all such accruals being in the aggregate
sufficient for payment of all such taxes and assessments.
8.18 ABSENCE OF CERTAIN CHANGES. Except as may be disclosed in the
American Disclosure Schedule, or except in connection with the transactions
contemplated by this Agreement, since December 31, 1999:
(a) There has been no change in the material assets,
financial condition or liabilities (contingent or
otherwise), business, or results of operations of American
and its Subsidiary which has had, or changes which in the
aggregate have had, a materially adverse effect on such
material assets, financial condition or results of
operations of American and its Subsidiary taken as a whole,
nor to their knowledge, has any event or condition occurred
which may result in such change or changes;
(b) There has not been any material damage, destruction
or loss by reason of fire, flood, accident or other casualty
(whether insured or not insured) materially and adversely
affecting the assets, financial condition, business or
operations of American or its Subsidiary taken as a whole;
(c) Other than in the ordinary course of business,
neither American nor its Subsidiary has disposed of, or
agreed to dispose of, any of their material properties or
assets, nor have they leased to others, or agreed to so
lease, any of such material properties or assets;
(d) There has not been any change in the authorized,
issued or outstanding capital stock of American except as
provided for in this Agreement,
or any material change in the outstanding debt of American
or its Subsidiary, other than changes due to payments in
accordance with the terms of such debt or changes in
deposits, Federal funds purchased, repurchase agreements or
other short- term borrowings in the ordinary course of
business;
(e) Except as otherwise disclosed in this Agreement,
American has not granted any warrant, option or right to
acquire, or agreed to repurchase, redeem or otherwise
acquire, any shares of its capital stock or any other of its
securities whatsoever;
(f) American and its Subsidiary have, and shall have at
Closing, personnel sufficient to adequately staff all key
positions within their respective operations. Other than as
disclosed by American, there has not been any material
increase in the compensation or fees payable by American or
its Subsidiary to their respective directors or officers for
services in their capacities as such, other than increases
in the regular course of business in accordance with past
practices or the personnel policies of American or its
Subsidiary, respectively, nor any material increase in
expenditures for any bonus, insurance, pension or other
employee benefit plan, payment or arrangement for or with
any of such directors or officers other than increases in
the regular course of business in accordance with past
practices or the personnel policies of American or its
Subsidiary;
(g) Neither American nor its Subsidiary has made any
material loan or advance other than in the ordinary course
of business;
(h) Neither American nor its Subsidiary has made any
expenditure or major commitment for the purchase,
acquisition, construction or improvement of any material
asset or assets which in the aggregate would be material
other than in the ordinary course of business;
(i) Neither American nor its Subsidiary has entered
into any other material transaction, contract or lease or
incurred any other material obligation or liability other
than in the ordinary course of business;
(j) There has not been any other event, condition or
development of any kind which materially and adversely
affects the material assets, financial condition or results
of operations of American or its Subsidiary, taken as a
whole, and neither American nor its Subsidiary has knowledge
of any such event, condition or development which may
materially and adversely affect the assets, financial
condition or results of operations of American and its
Subsidiary, taken as a whole.
8.19 FIDELITY BONDS. The Subsidiary has continuously maintained a
fidelity bond insuring it against acts of dishonesty by its officers and
employees in such amounts as are required by law and as are customary, usual and
prudent for a bank of its size. Since January 1, 2000, there have been no claims
under such bond and, except as disclosed in the American Disclosure Schedule,
neither American nor its Subsidiary is aware of any facts which would form the
basis of a claim under such bonds. Neither American nor its Subsidiary has any
reason to believe that its fidelity coverage will not be renewed by the
applicable carrier on substantially the same terms as its existing coverage.
8.20 NEGATIVE COVENANTS. Except as otherwise contemplated hereby,
between the date hereof and the Effective Date, or the time when this Agreement
terminates as provided herein, American will not, except as contemplated by this
Agreement, without the prior written approval of Wesbanco:
(a) Make any change in its authorized capital stock;
(b) Issue any shares of its common stock, securities
convertible into its common stock, or any long term debt
securities;
(c) Issue or grant any options, warrants or other
rights to purchase shares of its common stock;
(d) Declare or pay any dividends or other distributions
on any shares of common stock other than its regular
quarterly dividend of fifteen cents ($.15) per share
consistent with past practice.
(e) Purchase or otherwise acquire, or agree to acquire,
for a consideration any share of its capital stock (other
than in a fiduciary capacity);
(f) Except as otherwise contemplated by this Agreement
or as disclosed in or permitted by or under the conditions
set forth in Section 8.18(f) above and except for any
amendments required by law, enter into or amend any
employment, pension, retirement, stock option, profit
sharing, deferred compensation, consultant, bonus, group
insurance or similar plan in respect of any of its
directors, officers or other employees for services in their
capacities as such or materially increase its contribution
to any pension plan, except as disclosed in the American
Disclosure Schedule, regarding pension or retirement plans
or increases in accordance with past practices;
(g) Take any action materially and adversely affecting
the financial condition (present or prospective),
businesses, properties or operations of American or its
Subsidiary, taken as a whole;
(h) Acquire or merge with any other company or acquire
any branch or, other than in the ordinary course of
business, any assets of any other company;
(i) Except in the ordinary course of business as
heretofore conducted, and except as hereinabove provided,
mortgage, pledge or subject to a lien or any other
encumbrance any of its material assets, dispose of any of
its material assets, incur or cancel any material debts or
claims, or increase any compensation or benefits payable to
its officers or employees (other than as permitted in
Sections 8.18(f) and 8.20(f) hereof), except in the ordinary
course of business as heretofore conducted, or take any
other action not in the ordinary course of its business as
heretofore conducted or incur any material obligation or
enter into any material contract; or
(j) Amend its Articles of Incorporation or Bylaws,
except as may be necessary to carry out this Agreement or as
required by law.
8.21 ADDITIONAL COVENANTS. Except as otherwise contemplated by this
Agreement, American covenants and agrees:
(a) That it will promptly advise Wesbanco in writing of
the name and address of, and the number of shares of
American stock held by, each stockholder who elects to
exercise his or her appraisal rights pursuant to Section
1701.85 of the ORC;
(b) Subsequent to the date of this Agreement and prior
to the Effective Date, that it will operate its business
only in the ordinary course and in a manner consistent with
past practice;
(c) To the extent consistent with the fiduciary duties
of the Board of Directors to American and its shareholders
and in compliance with applicable law, that it will use its
best efforts to take or cause to be taken all action
required under this Agreement on its part to be taken as
promptly as practicable so as to permit the consummation of
the Merger at the earliest possible date and to cooperate
fully with the other parties to that end;
(d) American will not, and will not permit any person
acting on behalf of American or its Subsidiary to, directly
or indirectly, initiate or solicit any acquisition proposal
by any person, corporation or entity. For the purposes of
this subsection, "acquisition proposal" means any proposal
to merge or consolidate with, or acquire all or any
substantial portion of the assets of, American or its
Subsidiary, or any tender or exchange offer (or proposal to
make any tender or exchange offer) for any shares of stock
of American, or any proposal to acquire more than 5% of the
outstanding shares of stock of American or any options,
warrants or rights to acquire, or securities convertible
into or exchangeable for, more than 5% of the outstanding
shares of stock of American. Notwithstanding the provisions
of this Subsection (d), American shall not be prohibited
from furnishing information to, or entering into
discussions, negotiations or an agreement with, any person
or entity which makes an unsolicited acquisition proposal if
and to the extent that (i) the Board of Directors of
American, after consultation with and based on the advice of
counsel, determines in good faith that
such action is required to fulfill its fiduciary duties to
the shareholders of American under applicable law and (ii)
before furnishing such information to, or entering into
discussions or negotiations with, such person or entity,
American provides immediate written notice to Wesbanco of
such action;
(e) To promptly advise Wesbanco of any material adverse
change in the financial condition, assets, businesses or
operations of American or its Subsidiary, taken as a whole,
or any material changes or inaccuracies in data provided to
Wesbanco pursuant to this Agreement;
(f) To maintain in full force and effect its and its
Subsidiary's present fire, casualty, public liability,
employee fidelity and other insurance coverages or
replacement insurance coverage at substantially the same
premium and insurance levels;
(g) To cooperate with Wesbanco in furnishing such
information concerning the business and affairs of American,
its Subsidiary and their respective directors and officers
as is reasonably necessary or requested in order to prepare
and file any application for regulatory or governmental
approvals, including, but not limited to, an application to
the Federal Reserve Board and the West Virginia Department
of Banking for prior approval of the acquisition of American
by Wesbanco as contemplated hereunder. Consistent with its
fiduciary duties, American will use its best efforts to
obtain the approval or consent of any federal, state or
other regulatory agency having jurisdiction and of any other
party to the extent that such approvals or consents are
required to effect the Merger and the transactions
contemplated hereby or are required with respect to the
documents described in Section 8.3 hereof; and
(h) To cooperate with Wesbanco in furnishing such
information concerning the business of American and its
Subsidiary as is reasonably necessary or requested in order
to prepare and file any Proxy Statement to be prepared in
connection with the Merger as provided in Section 14 hereof.
8.22 REPURCHASE AGREEMENTS. With respect to any agreement pursuant to
which American or its Subsidiary have purchased securities subject to an
agreement to repurchase, American and its Subsidiary have a valid, perfected
first lien or security interest in or evidence of ownership in book entry form
of the government securities or other collateral securing the repurchase
agreement, and the value of such collateral equals or exceeds the amount of the
debt secured thereby.
8.23 RISK MANAGEMENT INSTRUMENTS. All material interest rate swaps,
caps, floors, option agreements, mortgage backed securities, futures and forward
contracts and other similar risk management arrangements, whether entered into
for American's or Subsidiary's own account, or for the account of one or more of
its customers, were entered into (A) in accordance with prudent business
practices and all applicable laws, rules, regulations and regulatory policies
and (B) with counter-parties believed to be financially responsible at the time;
and each of them constitutes the valid and legally binding obligation of
American or its Subsidiary, enforceable in accordance with its terms, and is in
full force and effect. American and its Subsidiary are not, nor to American's
knowledge is any other party thereto, in breach of any of its obligations under
any such agreement or arrangement.
SECTION 9
REPRESENTATIONS, WARRANTIES AND COVENANTS OF WESBANCO AND AB
--------------------------------------------------------------
Wesbanco and AB represent and warrant to American and covenant with
American that:
9.1 CORPORATE ORGANIZATION OF WESBANCO AND SUBSIDIARIES. Wesbanco is,
and upon execution hereof AB will be, a corporation duly organized, validly
existing and in good standing under the laws of the State of West Virginia, with
full corporate power and authority to carry on its business as it is now being
conducted and as contemplated by the Agreement and to own the properties and
assets which it owns, and neither the ownership of its property nor the conduct
of its business requires it, or any of its subsidiaries, to be qualified to do
business in any other jurisdiction except where the failure to be so qualified,
considering all such cases in the aggregate, does not involve a material risk to
the business, properties, financial position or results of operations of
Wesbanco and its subsidiaries taken as a whole. Each of Wesbanco's subsidiaries
("Wesbanco Subs"), other than AB, is a West Virginia, Ohio or Delaware
corporation, duly organized and validly existing in good standing under the laws
of Ohio, Delaware or West Virginia, as the case may be, with full corporate
power and authority to carry on its business as it is
now being conducted and to own the properties and assets which it owns. All
issued and outstanding shares of stock of AB and the Wesbanco Subs are held,
beneficially and of record, by Wesbanco and have been or, as to AB, on the date
of its execution hereof, will have been, fully paid, were validly issued and are
nonassessable. There are no options, warrants to purchase or contracts to issue,
or contracts or any other rights entitling anyone to acquire, any other stock of
AB or any of the Wesbanco Subs or securities convertible into shares of stock of
AB or any of the Wesbanco Subs.
9.2 AUTHORIZATION OF AGREEMENT. The Board of Directors of Wesbanco has
authorized the execution of this Agreement as set forth herein, and, subject to
the approval of this Agreement by the shareholders of Wesbanco, Wesbanco has the
corporate power and is duly authorized to execute and deliver this Agreement and
consummate the transactions contemplated herein, pursuant to this Agreement, and
this Agreement is a valid and binding agreement of Wesbanco enforceable in
accordance with its terms, except as enforceability may be subject to applicable
bankruptcy, insolvency, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and to any equitable principles
limiting the right to obtain specific performance of certain obligations
thereunder. Upon execution hereof by AB and Bank and subject to the approval
hereof by Wesbanco as their sole shareholder, AB and Bank have the corporate
power to execute and deliver this Agreement and have taken all action required
by law, their Articles of Incorporation, their Bylaws or otherwise to authorize
and approve such execution and delivery, the performance of the Agreement, the
Merger, the Bank Merger and the consummation of the transactions contemplated
hereby; and this Agreement is a valid and binding agreement of AB and Bank
enforceable in accordance with its terms, except as enforceability may be
subject to applicable bankruptcy, insolvency, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and to any equitable
principles limiting the right to obtain specific performance of certain
obligations thereunder.
9.3 TRANSFER OF SECURITIES TO EXCHANGE AGENT PRIOR TO, OR AS OF THE
CLOSING DATE. Prior to, or at the Closing Date, Wesbanco will deliver to the
Exchange Agent, for the benefit of the shareholders of American, an amount of
common stock and cash sufficient to meet the necessary amount of securities and
cash into which such common stock shall have been converted pursuant to Section
6.
9.4 NO VIOLATION OF OTHER INSTRUMENTS. Subject to obtaining any
required consents (which consents will be obtained by Wesbanco prior to the
Closing), the execution and delivery of this Agreement
do not, and the consummation of the Merger and the Bank Merger and the
transactions contemplated hereby will not, violate any provision of the Articles
of Incorporation or Bylaws of Wesbanco or any of the Wesbanco Subs or any
provision of, or result in the acceleration of any obligation under, any
material mortgage, Deed of Trust, note, lien, lease, franchise, license, permit,
agreement, instrument, law, order, arbitration award, judgment or decree, or in
the termination of any material license, franchise, lease or permit, to which
Wesbanco or any of the Wesbanco Subs, is a party or by which they are bound.
9.5 APPLICATION FOR AB. Wesbanco shall cause to be filed with the West
Virginia Secretary of State an application to organize and incorporate AB as a
West Virginia corporation, in accordance with the provisions of the West
Virginia Code, and upon the approval of such application and the issuance of a
Certificate of Incorporation for AB by the Secretary of State of West Virginia,
Wesbanco shall cause AB and Bank to execute and enter into this Agreement and
cause AB and Bank to take such action as is provided in this Agreement on their
part to be taken.
9.6 GOOD FAITH. Wesbanco shall use its best efforts in good faith to
take or cause to be taken all action required under this Agreement on its part
to be taken as promptly as practicable so as to permit the consummation of this
Agreement at the earliest possible date and cooperate fully with the other
parties to that end.
9.7 EXCHANGE ACT REPORTS. Wesbanco has delivered to American true and
correct copies of its Form 10-K (Annual Report) for the year ended December 31,
1999, and its Form 10-Q (Quarterly Report) for the quarter ended September 30,
2000, as filed with the SEC, all of which were prepared and filed in accordance
with the applicable requirements and regulations of the SEC. Wesbanco has also
delivered to American true and correct copies of all documents and reports filed
by Wesbanco with the SEC pursuant to the Exchange Act since January 1, 2000 (the
"Wesbanco Reports"). Wesbanco has filed and will continue to file all reports
and other documents required to be filed with the SEC pursuant to the Exchange
Act in a timely manner. All of the Wesbanco Reports complied in all material
respects with the Act and did not contain, as of their respective dates, any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein not misleading in light of the circumstances
under which they were made.
9.8 SUBSIDIARIES OF WESBANCO. In addition to AB, the subsidiaries of
Wesbanco are Wesbanco Bank, Inc., a West Virginia banking corporation, CBI
Corporation, a West Virginia corporation, Vandalia National Corporation, a
Delaware corporation, Wesbanco Securities, Inc., an Ohio corporation, Wesbanco
Insurance Services, a West Virginia corporation, Hometown Finance Company, a
West Virginia corporation, and FBI Corporation, a West Virginia corporation. All
have the requisite corporate power and authority to own and lease their
respective properties and to conduct their respective businesses as they are now
being conducted and are currently contemplated to be conducted. Wesbanco owns
100% of the issued and outstanding stock of all such corporations.
9.9 REGISTERED BANK HOLDING COMPANY. Wesbanco is a duly registered
bank holding company under the Bank Holding Company Act of 1956, as amended.
9.10 AUTHORITY TO ISSUE SHARES. The shares of common stock to be
issued by Wesbanco pursuant to this Agreement will be duly authorized by all
necessary corporate action at the time the Merger is consummated. When issued
upon the terms and conditions specified in this Agreement, such shares shall be
validly issued, fully paid and nonassessable. The shareholders of Wesbanco have,
and will have, no preemptive rights with respect to the issuance of the shares
of Wesbanco to be issued in the transaction contemplated in this Agreement.
9.11 FINANCIAL STATEMENTS. Wesbanco has delivered to American copies
of its consolidated balance sheets as of December 31, 1997, 1998 and 1999 and
the interim period ended September 30, 2000, and its consolidated statements of
income, consolidated statements of changes in shareholders' equity and
consolidated statements of changes in financial position for the three (3) year
period ended December 31, 1999, and the interim period ended September 30, 2000,
together with the notes thereto, accompanied by an audit report of Ernst & Young
LLP, independent auditors. Such statements and the related notes to all of said
financial statements, present fairly the consolidated financial position of
Wesbanco and its consolidated subsidiaries and the consolidated results of their
operations as of the dates and for the periods ended on the dates specified in
accordance with generally accepted accounting principles consistently applied
throughout the periods indicated, except as may be specifically disclosed in
those financial statements, including the notes to the financial statements
attached thereto, and subject to normal recurring year end adjustments.
9.12 NO ACTION, ETC. Except as disclosed in the Wesbanco Disclosure
Schedule, dated not more than 30 days from the date hereof (the "Wesbanco
Disclosure Schedule"), and as supplemented on the Effective Date, there are no
suits, actions, proceedings, claims or investigations (formal or informal)
pending, or to the knowledge of Wesbanco pending or threatened, against or
relating to Wesbanco, its subsidiaries, its businesses or any of its properties
or against any of their officers or directors (in their capacity as such) in law
or in equity or before any governmental agency. There are no suits, actions,
proceedings, claims or investigations against or relating to Wesbanco, its
subsidiaries, its businesses, its properties or against any of their officers or
directors (in their capacity as such) in law or in equity or before any
governmental agency, which, individually or in the aggregate, would, or is
reasonably likely to, if determined adversely to such party, materially
adversely affect the financial condition (present or prospective), businesses,
properties or operations of Wesbanco or its subsidiaries or the ability of
Wesbanco or its subsidiaries to conduct its business as presently conducted or
consummate the transaction contemplated hereby, and Wesbanco does not know of
any basis for any such action or proceeding. Neither Wesbanco nor any of its
subsidiaries are a party or subject to any cease and desist order, agreement or
similar arrangement with a regulatory authority which restricts its operations
or requires any action and neither Wesbanco nor any of its subsidiaries are
transacting business in material violation of any applicable law, ordinance,
requirement, rule, order or regulation.
9.13 CAPITALIZATION. The authorized capital stock of Wesbanco
consists of 50,000,000 shares of common stock, par value of $2.0833 per share,
of which 18,727,118 shares are duly authorized, validly issued and outstanding
(as of September 30, 2000) and are fully paid and nonassessable, and 1,000,000
shares of preferred stock, without par value, none of which are issued or
outstanding. There are no options, warrants, calls or commitments of any kind
entitling any person to acquire, or securities convertible into, Wesbanco Common
Stock, except as disclosed on the Wesbanco Disclosure Schedule. Wesbanco has
also executed an Agreement and Plan of Merger with Freedom Bancshares, Inc.
dated December 29, 2000, which provides for the issuance of up to an additional
490,200 shares.
Upon execution hereof by AB, the authorized capital stock of AB
consists of 100 shares of common stock, par value of $25.00 per share, all of
which such shares will be duly authorized and validly
issued and outstanding and will be fully paid and nonassessable. There are no
options, warrants, calls or commitments of any kind relating to, or securities
convertible into AB Common Stock.
9.14 UNDISCLOSED LIABILITIES. Wesbanco and the Wesbanco Subs have no
material liabilities other than those liabilities disclosed on or provided for
in the financial statements delivered pursuant to Section 9.11 of this
Agreement, or on the Wesbanco Disclosure Schedule.
9.15 TITLE TO PROPERTIES. Except for capitalized leases and liens and
encumbrances not material to the property and liens and encumbrances on property
acquired by Wesbanco Subs in foreclosure of loans and existing at the time of
foreclosure, Wesbanco and its subsidiaries have good and marketable title to all
of the property, interest in properties and other assets, real or personal, set
forth in its consolidated balance sheet as of December 31, 1999, and applicable
interim periods, or acquired since that date, subject to no material liens,
mortgages, pledges, encumbrances, or charges of any kind except liens reflected
on said balance sheets, and all of its leases are in full force and effect and
neither Wesbanco nor any of its subsidiaries is in material default thereunder.
No asset included in the financial statements referred to above has been valued
in such statements in excess of cost less depreciation or, in the case of
investment securities, in excess of their fair value in accordance with SFAS No.
115. All real and tangible personal property owned by Wesbanco or its
subsidiaries and used or leased by Wesbanco or its subsidiaries, or for its
business is in good condition, normal wear and tear excepted, and is in good
operating order. All of such property is insured against loss for at least 80%
of the full replacement value thereof (less applicable deductibles) by reputable
insurance companies authorized to transact business in the States of West
Virginia and Ohio.
9.16 REGISTRATION STATEMENT. The Registration Statement referred to in
Section 14.2 of this Agreement or any amendment or supplement thereto mailed to
the holders of the common stock of American 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 contained therein, in light
of the circumstances under which they were made, not misleading with respect to
Wesbanco, and will comply as to form in all material respects with the
requirements of the United States and West Virginia securities laws and any
other applicable Blue Sky laws.
9.17 ERISA. Except as disclosed in the Wesbanco Disclosure Schedule
(i) each employee benefit plan subject to Titles I and/or IV of ERISA and
established or maintained for persons including employees or former employees of
Wesbanco, or any of its subsidiaries, (hereinafter referred to as "Plan") has
been maintained, operated, administered and funded in accordance with its terms
and with all material provisions of ERISA and the IRC applicable thereto; (ii)
no event reportable under Section 4043 of ERISA has occurred and is continuing
with respect to any Plan; (iii) no liability to PBGC has been incurred with
respect to any Plan, other than for premiums due and payable and all premiums
required to have been paid to PBGC as of the date hereof have been and as of the
Effective Date will have been paid; (iv) other than the termination of the
defined benefit pension plans of Wheeling Dollar Bank, First National Bank and
Trust Company, Xxxx County Bank, First-Tyler Bank & Trust Company, Brooke
National Bank, First National Bank of Barnesville, Xxxxxxxx National Bank and
First Fidelity Bancorp, Inc., no Plan has been terminated, no proceedings have
been instituted to terminate any Plan, and no decision has been made to
terminate or institute proceedings to terminate any Plan; (v) with respect to
the termination of the defined benefit pension plans of Wheeling Dollar Bank,
First National Bank and Trust Company, Xxxx County Bank, First-Tyler Bank &
Trust Company, Brooke National Bank, First National Bank of Barnesville,
Xxxxxxxx National Bank and First Fidelity Bancorp, Inc., all required
governmental and regulatory approvals of such terminations have been obtained,
all participants in such Plans or their beneficiaries have received single
premium annuity contracts or other benefits which will provide those
participants or beneficiaries with the retirement income calculated under the
terms and conditions of such Plans, all liabilities of such Plans have been
paid, released, discharged or merged, and any surplus assets remaining in such
Plans after satisfaction of all of its liabilities have been recovered by
Wesbanco or its subsidiaries; (vi) neither Wesbanco nor any of its subsidiaries
currently are a participating employer in any multi-employer or multiple
employer employee benefit pension plan (including any multi-employer plans as
defined in Section 3(37) of ERISA) and, with respect to any multi-employer or
multiple employer plan in which Wesbanco or any of its subsidiaries was a
participating employer, all contributions due from Wesbanco or any of its
subsidiaries to any such multi-employer or multiple employer plan have been
timely paid and any additional contributions due on or before the Effective Date
shall have been paid; (vii) with respect to any multi-employer pension plan
subject to the Multi-Employer Pension Plan Amendments Act of 1980 in
which Wesbanco or any of its subsidiaries was a participating employer, neither
Wesbanco nor any of its subsidiaries have incurred or will incur any withdrawal
liability, complete or partial, under Section 4201, 4203, or 4205 of ERISA, as a
consequence of discontinuing participating in such multi-employer pension plan;
(viii) there has been no cessation of, and no decision has been made to cease,
operations at a facility or facilities where such cessation could reasonably be
expected to result in a separation from employment of more than 20% of the total
number of employees who are participants under any Plan; (ix) each Plan which is
an employee pension plan meets the requirements of "qualified plans" under
Section 401(a) of the IRC; (x) no accumulated funding deficiency within the
meaning of Section 412 of the IRC or Section 302 of ERISA has been incurred with
respect to any Plan subject to the funding standards of those provisions; (xi)
with respect to each Plan, there have been no prohibited transactions as defined
in Section 406 of ERISA or Section 4975 of the IRC, and there are no actions,
suits or claims with respect to the assets thereof (other than routine claims
for benefits) pending or threatened; and (xii) all required reports,
descriptions and notices (including, but not limited to, Form 5500 Annual
Reports, Summary Annual Reports and Summary Plan Descriptions) have been
appropriately filed with the government or distributed to participants with
respect to each Plan.
9.18 LABOR DISPUTES. Except as disclosed in the Wesbanco Disclosure
Schedule, neither Wesbanco nor any of its subsidiaries are directly or
indirectly involved in or threatened with any labor dispute, including, without
limitation, matters regarding discrimination by reason of race, creed, sex,
handicap or national origin, which would materially and adversely affect their
financial condition, assets, businesses or operations taken as a whole. No
collective bargaining representatives represent employees of Wesbanco, AB or the
Wesbanco Subs, and no petition for election of any collective bargaining
representative has been filed and, to the knowledge of Wesbanco and its
subsidiaries, no organizational campaign on behalf of any collective bargaining
unit has been undertaken by or on behalf of any Wesbanco, AB or Wesbanco Subs
employees.
9.19 RESERVE FOR POSSIBLE LOAN LOSSES. The reserve for possible loan
losses shown on the consolidated balance sheet of Wesbanco and its subsidiaries
as of December 31, 1999, and the interim period ending September 30, 2000,
delivered pursuant to this Agreement are adequate in all material respects as of
the respective dates thereof.
9.20 TAXES. Except as disclosed in the Wesbanco Disclosure Schedule:
(a) Wesbanco and its subsidiaries have timely and
properly filed all Federal Income Tax Returns and all other
federal, state, municipal and other tax returns which they
are required to file, either on their own behalf or on
behalf of their employees or other persons or entities, all
such returns and reports being true and correct and complete
in all material respects, and have paid all taxes, including
penalties and interest, if any, which have become due
pursuant to such returns or reports or forms or pursuant to
assessments received by them;
(b) Neither the Internal Revenue Service nor any other
taxing authority is now asserting against Wesbanco or any of
its subsidiaries, or, to its knowledge, threatening to
assert against them, or any of them, any material deficiency
or claim for additional taxes, interest or penalty;
(c) There is no pending or, to its knowledge,
threatened examination of the Federal Income Tax Returns of
Wesbanco or any of its subsidiaries, and, except for tax
years still subject to the assessment and collection of
additional federal income taxes under the three-year period
of limitations prescribed in IRC Section 6501(a), no tax
year of Wesbanco or any of its subsidiaries remains open to
the assessment and collection of additional material Federal
Income Taxes; and
(d) There is no pending or, to its knowledge,
threatened examination of the West Virginia Business
Franchise Tax Returns of Wesbanco or any of its
subsidiaries, and, except for tax years still subject to the
assessment and collection of additional Business Franchise
Taxes under the three-year period of limitations prescribed
in X.Xx. Code Annot. Section 11-10-15, no tax year of
Wesbanco or any of its subsidiaries remains open to the
assessment and collection of additional Business Franchise
Taxes.
(e) Wesbanco, and its subsidiaries, have properly
accrued and reflected on their December 31, 1999,
consolidated balance sheet, delivered
pursuant to Section 9.11 hereof, and have thereafter to the
date hereof properly accrued, and will, from the date
hereof, through the Closing Date, properly accrue all
liabilities for taxes and assessments, and will timely and
properly file all such federal, state, local and foreign tax
returns and reports and forms which they are required to
file, either on their own behalf or on behalf of their
employees or other persons or entities, all such returns and
reports and forms to be true and correct and complete in all
respects, and will pay or cause to be paid when due all
taxes, including penalties and interest, if any, which have
become due pursuant to such returns or reports or forms or
pursuant to assessments received by them, all such accruals
being in the aggregate sufficient for payment of all such
taxes and assessments.
9.21 ABSENCE OF CERTAIN CHANGES. Except as may be disclosed in the
Wesbanco Disclosure Schedule, or except in connection with the transactions
contemplated by this Agreement, since December 31, 1999:
(a) There has been no change in the material assets,
financial condition, liabilities (contingent or otherwise),
business or results of operation of Wesbanco and its
subsidiaries which has had, or changes in the aggregate
which have had, a materially adverse effect on the material
assets, financial condition or results of operations of
Wesbanco, nor, to its knowledge, has any event or condition
occurred which may result in such change or changes;
(b) There has not been any material damage,
destruction, or loss by reason of fire, flood, accident or
other casualty (whether insured or not insured) materially
and adversely affecting the assets, financial condition,
business or operations of Wesbanco or any of its
subsidiaries taken as a whole;
(c) Other than in the ordinary course of business,
neither Wesbanco nor any of its subsidiaries have disposed
of, or agreed to dispose of, any of their material
properties or assets, nor have they leased to others, or
agreed to so lease, any of such material properties or
assets;
(d) There has not been any change in the authorized,
issued or outstanding capital stock of Wesbanco, except as
provided for in this Agreement or as disclosed in the
Wesbanco Disclosure Schedule, or any material change in the
outstanding debt of Wesbanco or any of its subsidiaries,
other than changes due to payments in accordance with the
terms of such debt or changes in deposits, federal funds
purchased, repurchase agreements or other short-term
borrowings in the ordinary course of business;
(e) Except for the purchases of its common stock
pursuant to its previously announced stock repurchase
programs, Wesbanco has not granted any warrant, option or
right to acquire, or agreed to repurchase, redeem or
otherwise acquire, any shares of its capital stock or any
other of its securities whatsoever;
(f) Neither Wesbanco nor any of its subsidiaries have
made any material loan or advance other than in the ordinary
course of business;
(g) Neither Wesbanco nor any of its subsidiaries has
entered into any other material transaction, contract or
lease or incurred any other material obligation or
liabilities other than in the ordinary course of business;
(h) Neither Wesbanco nor any of its subsidiaries have
made any expenditure or major commitment for the purchase,
acquisition, construction or improvement of any material
asset or assets which in the aggregate would be material
other than in the ordinary course of business;
(i) There have not been any dividends or other
distributions declared or paid on any shares of Wesbanco
Common Stock or preferred stock of Wesbanco which, taken in
the aggregate with all other such distributions declared or
paid in the same tax year, exceed 65% of the after-tax
income of Wesbanco for the tax year in which paid;
(j) Business has been conducted by Wesbanco in the
ordinary course and in a manner consistent with past
practice;
(k) There has been no change in the Articles of
Incorporation or Bylaws of Wesbanco which would in the
reasonable opinion of American have a material adverse
effect on the rights of holders of Wesbanco Common Stock;
and
(l) There has not been any other event, condition or
development of any kind which materially and adversely
affects the material assets, financial condition or results
of operations of Wesbanco or any of its subsidiaries, and
neither Wesbanco nor any of its subsidiaries have knowledge
of any such event, condition or development which may
materially and adversely affect the material assets,
financial condition or results of operations of Wesbanco and
its subsidiaries.
9.22 FIDELITY BONDS. Each of the Wesbanco Subs has continuously
maintained fidelity bonds insuring it against acts of dishonesty by each of its
officers and employees in such amounts as are required by law and as are
customary, usual and prudent for a bank of its size. Since January 1, 2000,
there have been no claims under such bonds (except as disclosed in the Wesbanco
Disclosure Schedule) and, except as disclosed in writing to American, neither
Wesbanco nor any Wesbanco Subs are aware of any facts which would form the basis
of a claim under such bonds. Neither Wesbanco nor any Wesbanco Subs have any
reason to believe that any fidelity coverage will not be renewed by their
carriers on substantially the same terms as the existing coverage.
9.23 ADDITIONAL COVENANTS. Except as otherwise contemplated by this
Agreement, Wesbanco covenants and agrees:
(a) That it will use its best efforts in good faith to
take, or cause to be taken all action required under this
Agreement on its part, or AB's or Bank's part, to be taken
as promptly as practicable so as to permit the consummation
of the Merger at the earliest possible date and to cooperate
fully with the other parties to that end, and that it will,
in all such efforts, give priority to this acquisition of
American;
(b) To deliver to American all Forms 10-K, 10-Q and
8-K filed for periods ending after the date of this
Agreement within seven (7) days after the filing of each
such report with the SEC;
(c) To promptly advise American of any material adverse
change in the financial condition, assets, businesses or
operations of Wesbanco or any of its subsidiaries, or any
material changes or inaccuracies in data provided to
American pursuant to this Agreement or any "acquisition
proposal" with respect to Wesbanco received by Wesbanco;
(d) To cooperate with American in furnishing such
information concerning the business and affairs of Wesbanco
and its subsidiaries and its directors and officers as is
reasonably necessary or requested in order to prepare and
file any application for regulatory or governmental
approvals, including but not limited to an application to
the Federal Reserve Board and the West Virginia Department
of Banking for prior approval of the acquisition of American
by Wesbanco as contemplated hereunder. Wesbanco will use its
best efforts to obtain the approval or consent of any
federal, state or other regulatory agency having
jurisdiction and of any other party to the extent that such
approvals or consents are required to effect the Merger and
the transactions contemplated hereby or are required with
respect to the documents described in Section 9.4 hereof;
and
(e) To cooperate with American in furnishing such
information concerning the business of Wesbanco and its
subsidiaries as is reasonably necessary or requested in
order to prepare any Proxy Statement to be prepared in
connection with the Merger.
9.24 AUTHORITY TO ISSUE SHARES. The shares of common stock of Wesbanco
to be issued pursuant to this Agreement will be duly authorized at the time the
Merger is consummated. When issued upon the terms and conditions specified in
this Agreement, such shares shall be validly issued, fully paid, and
nonassessable. The shareholders of Wesbanco have, and will have, no preemptive
rights with respect
to the issuance of the shares of Wesbanco to be authorized and issued in the
transaction contemplated in this Agreement.
9.25 REPURCHASE AGREEMENTS. With respect to any agreement pursuant to
which Wesbanco or the Wesbanco Subs have purchased securities subject to an
agreement to repurchase, Wesbanco and the Wesbanco Subs have a valid, perfected
first lien or security interest in or evidence of ownership in book entry form
of the government securities or other collateral securing the repurchase
agreement, and the value of such collateral equals or exceeds the amount of the
debt secured thereby.
9.26 RISK MANAGEMENT INSTRUMENTS. All material interest rate swaps,
caps, floors, option agreements, mortgage backed securities, futures and forward
contracts and other similar risk management arrangements, whether entered into
for Wesbanco's or the Wesbanco Subs' own account, or for the account of one or
more of its customers, were entered into (A) in accordance with prudent business
practices and all applicable laws, rules, regulations and regulatory policies
and (B) with counter-parties believed to be financially responsible at the time;
and each of them constitutes the valid and legally binding obligation of
Wesbanco or the Wesbanco Subs enforceable in accordance with its terms, and is
in full force and effect. Wesbanco and the Wesbanco Subs are not, nor to
Wesbanco's knowledge is any other party thereto, in breach of any of its
obligations under any such agreement or arrangement.
SECTION 10
INVESTIGATION
-------------
Subject to the conditions set forth in this Section 10, prior to the
Effective Time, Wesbanco and American may directly and through their
representatives, make such investigation of the assets and business of Wesbanco
and American and their subsidiaries as each deems necessary or advisable.
Wesbanco and American and their representatives, including, without limitation,
their accountants and investment advisors, shall have, at reasonable times after
the date of execution by Wesbanco and American hereof, full access to the
premises and to all the property, documents, material contracts, books and
records of each, and its subsidiaries, and to all documents, information and
working papers concerning each held by such party's accountants, without
interfering in the ordinary course of business of such entity, and the officers
of each will furnish to the other such financial and operating data and other
information with respect to the business and properties of each other and their
subsidiaries as each shall from time to time
reasonably request; provided, however, that neither party shall be required to
give such access or information to the other party to the extent that it is
prohibited therefrom by rule, regulation, or order of any regulatory body, and
further provided that confidential information of individual banking customers
shall not be photocopied or removed from the premises of such institution. All
data and information received by Wesbanco and its authorized representatives
from American and by American and its authorized representatives from Wesbanco
shall be held in strict confidence by such party and its authorized
representatives, and neither party nor its authorized representatives will use
such data or information or disclose the same to others except with the written
permission of the other party.
SECTION 11
NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES
-----------------------------------------------
The representations and warranties included or provided herein shall
not survive the Effective Date.
SECTION 12
CONDITIONS PRECEDENT; CLOSING DATE AND EFFECTIVE DATE
-----------------------------------------------------
12.1 CONDITIONS PRECEDENT OF WESBANCO AND AMERICAN. The consummation
of this Agreement by Wesbanco and American and the Merger is conditioned upon
the following:
(a) The shareholders of American, Wesbanco, AB and Bank
shall have approved this Agreement by such vote as required
by law;
(b) The West Virginia Banking Board (i) shall have
granted its final approval of the incorporation and
organization of AB as a West Virginia corporation, the
Merger and the Bank Merger and (ii) shall not, within 120
days from the date of Wesbanco's submission to the Banking
Board pursuant to West Virginia Code Section 31A-8A- 4(a),
have entered an order disapproving the acquisition of
American by Wesbanco pursuant to this Agreement;
(c) The Secretary of State of West Virginia shall have
issued a Certificate of Incorporation for AB;
(d) The Board of Governors of the Federal Reserve
System shall have approved the application of Wesbanco to
acquire American; the Merger of
AB pursuant to this Agreement; and the merger of the
Subsidiary with and into the Bank;
(e) The Registration Statement of Wesbanco shall be
effective on the date of the Closing and all post-effective
amendments filed shall have been declared effective or shall
have been withdrawn by that date. No stop orders suspending
the effectiveness thereof shall have been issued which
remain in effect on the date of the Closing or shall have
been threatened, and no proceedings for that purpose shall,
before the Closing, have been initiated or, to the knowledge
of Wesbanco, threatened by the SEC. All state securities and
"Blue Sky" permits or approvals required (in the opinion of
Wesbanco and American to carry out the transaction
contemplated in this Agreement) shall have been received.
(f) No order to restrain, enjoin or otherwise prevent
the consummation of the transactions contemplated in this
Agreement shall have been entered by any court or
administrative body which remains in effect on the date of
the Closing.
(g) Wesbanco, American, AB and Bank shall have
received, in form and substance satisfactory to Wesbanco's
and American's counsel, all consents, federal, state,
governmental, regulatory and other approvals and
permissions, and the satisfaction of all the requirements
prescribed by law which are necessary to the carrying out of
the transactions contemplated hereby shall have been
procured, including the filing of an effective Registration
Statement with the Securities and Exchange Commission and in
addition, Wesbanco and American shall have received any and
all consents required with respect to the documents
described pursuant to Section 8.3 and Section 9.4 hereof;
(h) All delay periods and all periods for review,
objection or appeal of or to any of the consents, approvals
or permissions required with respect to the consummation of
the Merger and the Bank Merger and this Agreement shall have
expired;
(i) Unless waived by Wesbanco and American, the holders
of not more than ten percent (10%) of the outstanding common
stock of American shall have made written demand for the
fair cash value in accordance with ORC, not have voted in
favor of the Agreement at the special meeting of American
shareholders referred to in Section 14.1 hereof and have
otherwise exercised such dissenters' rights pursuant to
Section 1701.85 of the ORC;
(j) On or before the Closing Date, there shall have
been received from the Internal Revenue Service a ruling or
rulings, or, at the option of American, in lieu thereof, an
opinion from counsel for American substantially to the
effect that for Federal Income Tax purposes:
(i) The statutory merger of American with AB
and the statutory merger of the Subsidiary with
Bank will each constitute a reorganization within
the meaning of Section 368(a)(1) of the Internal
Revenue Code of 1986 ("IRC"), and Wesbanco,
American, AB and Bank will each be a "party to a
reorganization" as defined in IRC Section 368(b);
(ii) No gain or loss will be recognized by
Wesbanco, American, AB or Bank as a result of the
transactions contemplated in the Agreement;
(iii) No gain or loss will be recognized by
the shareholders of American as a result of their
exchange of American's Common Stock for Wesbanco's
Common Stock, except to the extent any shareholder
receives cash in lieu of a fractional share or as
a dissenting shareholder;
(iv) The holding period of the Wesbanco
Common Stock received by each holder of American
Common Stock will include the period during which
the stock of American surrendered in exchange
therefor was held, provided such stock was a
capital asset in the hands of the holder on the
date of exchange; and
(v) The Federal Income Tax basis of the
Wesbanco Common Stock received by each holder of
American Common Stock will be the same as the
basis of the stock exchanged therefore.
(k) No action, proceeding, regulation or legislation
shall have been instituted before any court, governmental
agency or legislative body to enjoin, restrain or prohibit,
or to obtain substantial damages with respect to, the
Agreement or the consummation of the transactions
contemplated hereby, which,
in the reasonable judgment of Wesbanco or American would
make it inadvisable to consummate such transactions (it
being understood and agreed that a written request by
governmental authorities for information with respect to the
Merger or the Bank Merger may not be deemed by either party
to be a threat of material litigation or proceeding,
regardless of whether such request is received before or
after execution of the Agreement).
(l) The approvals referred to in subparagraphs (b) and
(d) of Subsection 12.1 herein shall not have required the
divestiture or cessation of any significant part of the
present operations conducted by Wesbanco, American or any of
their subsidiaries, and shall not have imposed any other
condition, which divestiture, cessation or condition
Wesbanco reasonably deems to be materially disadvantageous
or burdensome.
12.2 CONDITIONS PRECEDENT OF WESBANCO. The consummation of this
Agreement by Wesbanco and the Merger is also conditioned upon the following:
(a) Unless waived by Wesbanco, the representations and
warranties of American contained in this Agreement shall be
correct on and as of the Effective Date with the same effect
as though made on and as of such date, except for
representations and warranties expressly made only as of a
particular date and except for changes which have been
consented to by Wesbanco or which are not, in the aggregate,
material and adverse, to the financial condition,
businesses, properties or operations of American and its
Subsidiary taken as a whole, or which are the result of
expenses or transactions contemplated or permitted by the
Agreement; and American shall have performed in all material
respects all of its obligations and agreements hereunder
theretofore to be performed by it; and Wesbanco and AB shall
have received on the Effective Date an appropriate
certificate (in affidavit form) dated the Effective Date and
executed on behalf of American by one or more appropriate
executive officers of American to the effect
that such officers have no knowledge of the nonfulfillment
of the foregoing condition;
(b) OPINION OF AMERICAN COUNSEL. An opinion of Xxxxxx
X. Xxxxxxxxxxx, counsel for American, shall have been
delivered to Wesbanco, dated the Closing Date, and in form
and substance satisfactory to Wesbanco and its counsel, to
the effect that:
(i) American is a corporation duly organized,
validly existing and in good standing under the
laws of the State of Ohio and has the full
corporate power and authority to own all of its
properties and assets and to carry on its business
as it is now being conducted, and neither the
ownership of its property nor the conduct of its
business requires it, or its Subsidiary, to be
qualified to do business in any other jurisdiction
except where the failure to be so qualified,
considering all such cases in the aggregate, does
not involve a material risk to the business,
properties, financial position or results of
operations of American and its Subsidiary, taken
as a whole.
(ii) American has the full corporate power to
execute and deliver the Agreement. All corporate
action of American required to duly authorize the
Agreement and the actions contemplated thereby has
been taken, and the Agreement is valid and binding
on American in accordance with its terms, subject,
as to the enforcement of remedies, to applicable
bankruptcy, insolvency, reorganization, fraudulent
conveyance, receivership, moratorium, or other
similar laws affecting the enforcement of
creditors' rights generally from time to time in
effect, whether state or federal; subject to
application of the public policy of the State of
West Virginia; and subject to any equitable
principles limiting the right to obtain specific
performance of certain obligations thereunder,
whether such enforcement is considered in a
proceeding in equity or at law.
(iii) All shares of common stock of American
issued and outstanding as of the Effective Date
are duly authorized, validly issued, fully paid
and nonassessable.
(iv) The consummation of the Merger and the
Bank Merger contemplated by the Agreement will not
violate any provision of American's or the
Subsidiary's Articles of Incorporation or Bylaws,
or violate any provision of, or result in the
acceleration of any material obligation under, any
material mortgage, loan agreement, order,
judgment, law or decree known to such counsel to
which American is a party or by which it is bound
and will not violate or conflict with any other
material restriction of any kind or character
known to such counsel to which American is
subject, which would have
a materially adverse effect on the assets,
business or operations of American, taken as a
whole.
(v) American's Subsidiary is a national
banking association and is duly organized, validly
existing and in good standing under the laws of
the United States, and it has the requisite
corporate power and authority to own and lease its
properties and to conduct its business as it is
now being conducted. To the best of such counsel's
knowledge American owns 100% of the issued and
outstanding stock of such corporation.
(vi) To the best of such counsel's knowledge,
as of the date hereof neither American nor its
Subsidiary was involved in any litigation against
them (with possible exposure of $100,000.00 or
more), pending or threatened.
(c) Xxxxxx X. XxXxxxx and Xxxx X. Xxxxxxx shall have
resigned as officers of American and its Subsidiary, which
resignations shall be dated as of the Closing Date, shall
have each executed severance plan clarification agreements
in form and substance satisfactory to Wesbanco and have
executed Consulting Agreements in form and substance
satisfactory to Wesbanco. Xxxxx X. Xxxxxxxx and Xxxx X. Wait
shall have duly executed and delivered the employment
agreements with the Bank, dated as of the Closing Date, in
substantially the form attached hereto as Exhibits ____ and
_____, and Xxxxx X. Xxxxxxxx and Xxxx X. Wait shall each
have executed severance plan clarification agreements and
Xxxxxxx X. X'Xxxxx shall have executed an Amendment to
Employment Agreement, each in form and substance
satisfactory to Wesbanco.
(d) American shall have delivered to Wesbanco a
schedule identifying all persons who may be deemed to be
"affiliates" of American under Rule 145 of the Securities
Act of 1933, as amended, and shall use its best efforts to
cause each affiliate to deliver to Wesbanco prior to the
Effective Date a letter substantially in the form attached
hereto as Exhibit A.
(e) American shall have furnished Wesbanco with a
certified copy of resolutions duly adopted by the Board of
Directors and the shareholders of American approving the
Agreement and authorizing the Merger and the transactions
contemplated hereby.
(f) Unless waived by Wesbanco, on the Closing Date,
there shall not be pending against American or its
Subsidiary or the officers or directors of American or its
Subsidiary in their capacity as such, any suit, action or
proceeding which, in the reasonable judgment of Wesbanco, if
successful, would have material adverse effect on the
financial condition or operations of American or its
Subsidiary.
(g) American shall have executed and delivered to
Wesbanco a Stock Option Agreement, substantially in the form
attached hereto as Exhibit B, dated the date of this
Agreement, and incorporated herein by reference.
12.3 CONDITIONS PRECEDENT OF AMERICAN. The consummation of this
Agreement by American and the Merger is also conditioned upon the following:
(a) Unless waived by American the representations and
warranties of Wesbanco and AB contained in this Agreement
shall be correct on and as of the Effective Date with the
same effect as though made on and as of such date, except
for representations and warranties expressly made only as of
a particular date and except for changes which have been
consented to by American or which are not in the aggregate
material and adverse to the financial condition, businesses,
properties or operations of Wesbanco and AB or which are the
result of expenses or transactions contemplated or permitted
by this Agreement, and Wesbanco and AB shall have performed
in all material respects all of their obligations and
agreements hereunder theretofore to be performed by them;
and American shall have received on the Effective Date an
appropriate certificate (in affidavit form) dated the
Effective Date and executed on behalf of Wesbanco and AB by
one or more appropriate executive officers of each of them
to the effect that such officers have no knowledge of the
nonfulfillment of the foregoing conditions;
(b) OPINION OF WESBANCO COUNSEL. An opinion of
Phillips, Gardill, Xxxxxx & Xxxxxxxx, counsel for Wesbanco,
shall have been delivered to
American, dated the Closing Date, and in form and substance
satisfactory to American and its counsel, to the effect
that:
(i) Wesbanco, AB and Bank are corporations
duly organized, validly existing and in good
standing under the laws of the State of West
Virginia and have the full corporate power and
authority to own all of their properties and
assets and to carry on their businesses as they
are now being conducted, and neither the ownership
of their property nor the conduct of their
businesses require them, or any of their
subsidiaries, to be qualified to do business in
any other jurisdiction except where the failure to
be so qualified, considering all such cases in the
aggregate, does not involve a material risk to the
business, properties, financial position or
results of operations of Wesbanco, AB and Bank,
taken as a whole.
(ii) Wesbanco, AB and Bank have the full
corporate power to execute and deliver the
Agreement. All corporate action of Wesbanco, AB
and Bank required to duly authorize the Agreement
and the actions contemplated thereby have been
taken, and the Agreement is valid and binding on
Wesbanco, AB and Bank in accordance with its
terms, subject, as to the enforcement of remedies,
to applicable bankruptcy, insolvency, moratorium,
or other similar laws affecting the enforcement of
creditors' rights generally from time to time in
effect, and subject to any equitable principles
limiting the right to obtain specific performance
of certain obligations thereunder.
(iii) The consummation of the mergers
contemplated by the Agreement will not violate any
provision of Wesbanco's, AB's or Bank's Articles
of Incorporation or Bylaws, or violate any
provision of, or result in the acceleration of any
material obligation under, any material mortgage,
loan agreement, order, judgment, law or decree
known to such counsel to which Wesbanco, AB or
Bank are a party or by which they are bound, and
will not violate or conflict with any other
material restriction of any kind or character
known to such counsel to which Wesbanco, AB or
Bank are subject which would have a material
adverse effect on the assets, business or
operations of Wesbanco, AB and Bank taken as a
whole.
(iv) Each of Wesbanco's subsidiaries is duly
organized, validly existing and in good standing
under the laws of the state of its organization
and has the requisite corporate power and
authority to own and lease its properties and to
conduct its business as it is now being conducted.
To the best of such counsel's knowledge, Wesbanco
owns 100% of the issued and outstanding stock of
each such corporation.
(v) To the best of such counsel's knowledge,
as of the date hereof, neither Wesbanco nor any of
its subsidiaries were involved in any litigation
against them (with
possible exposure of $100,000.00 or more), pending
or threatened, that has not been disclosed to
American.
(vi) The shares of Wesbanco Common Stock to
be issued to American's shareholders pursuant to
the Agreement, when issued as described therein,
will be duly authorized, validly issued, fully
paid and nonassessable.
(c) McDonald Investments Inc., financial advisors to
American, shall have furnished to American an opinion, or an
updating of any opinion rendered after the date of the
Agreement, dated on or prior to the distribution date of the
Proxy Statement described in Section 14.1 of this Agreement,
to the effect that the exchange ratio is fair, from a
financial point of view, as of such date, to the
shareholders of American.
(d) Wesbanco, AB and Bank shall have furnished American
with certified copies of resolutions duly adopted by the
Boards of Directors of Wesbanco, AB and Bank and the
shareholders of Wesbanco, AB and Bank approving the
Agreement and authorizing the Merger, the Bank Merger and
transactions contemplated hereby.
(e) Unless waived by American, on the Closing Date,
there shall not be pending against Wesbanco or any of its
subsidiaries or the officers or directors of Wesbanco or any
of its subsidiaries in their capacity as such, any suit,
action or proceeding which, in the reasonable judgment of
American, if successful, would have a material adverse
effect on the financial condition or operations of Wesbanco
or any of its subsidiaries.
12.4 CLOSING DATE. The Closing shall be effected as soon as
practicable after all of the conditions contained herein shall have been
satisfied on the Closing Date as defined in Section 2.3 hereof, which Closing
Date shall be the latest of:
(a) The second business day after the meetings of the
shareholders of American or Wesbanco, whichever is later, at
which the Agreement is approved;
(b) The fifteenth (15th) day after the approval of the
acquisition of American by the Board of Governors of the
Federal Reserve System (the "Federal Reserve Board");
(c) The fifteenth (15th) day after the approval of the
Bank Merger by the Federal Reserve Board;
(d) The day after any stay of the Federal Reserve
Board's approval of the acquisition of American or the
approval of the Bank Merger shall be vacated or shall have
expired or the day after any injunction against the closing
of the Merger or the Bank Merger shall be lifted, discharged
or dismissed;
(e) The day after the approval of the acquisition of
American by the West Virginia Department of Banking is
received by Wesbanco;
(f) The second business day after the date on which the
last condition set forth in Section 12 is satisfied or
waived;
(g) Such other date as shall be mutually agreed to by
Wesbanco and American.
The Closing shall be held in Wheeling, West Virginia, at such time and place as
the parties may agree upon. The date and time of closing are herein called the
"Closing Date". Promptly after the Closing, the Articles of Merger with respect
to the Merger, and the Bank Merger, shall be filed with the Secretary of State
of West Virginia.
12.5 EFFECTIVE DATE. The Merger, and the Bank Merger, shall become
effective (the "Effective Date") on the date on which the Certificates of Merger
approving the mergers are issued by the Secretary of State of West Virginia. The
surviving corporations shall record said Certificates of Merger in the office of
the Clerk of the County Commission of Ohio County.
SECTION 13
TERMINATION OF AGREEMENT
------------------------
13.1 GROUNDS FOR TERMINATION. This Agreement and the transactions
contemplated hereby may be terminated at any time prior to the Closing Date
either before or after the meeting of the shareholders of American:
(a) By mutual consent of American and Wesbanco;
(b) By either American or Wesbanco if any of the
conditions hereto to such party's obligations to close have
not been met as of the Closing Date and the same has not
been waived by the party adversely affected thereby;
(c) By either American or Wesbanco if the Merger shall
violate any nonappealable final order, decree or judgment of
any court or governmental body having competent
jurisdiction;
(d) By American or Wesbanco, if the Closing Date has
not occurred by December 31, 2001;
(e) By American, unless waived by American, if the
Market Value of Wesbanco stock shall fall below Sixteen
Dollars ($16.00) per share as of the Closing Date. Market
Value, for purposes of this paragraph, shall mean the
average bid price of Wesbanco Common Stock (as quoted on
Nasdaq Stock Market) for the 30 calendar days preceding five
business days before the Closing.
(f) By either party in the event that the shareholders
of American or Wesbanco vote against consummation of the
Merger.
13.2 EFFECT OF TERMINATING; RIGHT TO PROCEED. In the event this
Agreement shall be terminated pursuant to Section 13.1, all further obligations
of Wesbanco and American under this Agreement, except Sections 10, 13.1, 13.2
and 20 hereof, shall terminate without further liability of Wesbanco and AB to
American or of American to Wesbanco and AB.
13.3 RETURN OF DOCUMENTS IN EVENT OF TERMINATION. In the event of
termination of this Agreement for any reason, Wesbanco and American shall each
promptly deliver to the other all documents, work papers and other material
obtained from each other relating to the transactions contemplated hereby,
whether obtained before or after the execution hereof, including information
obtained pursuant to Section 10 hereof, and will take all practicable steps to
have any information so obtained kept confidential, and thereafter, except for
any breach of the continuing sections of the Agreement, each party shall be
mutually
released and discharged from liability to the other party or to any third
parties hereunder, and no party shall be liable to any other party for any costs
or expenses paid or incurred in connection herewith.
SECTION 14
MEETING OF SHAREHOLDERS OF AMERICAN
-----------------------------------
14.1 Subject to receipt by American of the fairness opinion described
in Section 12.3(c) hereof, American shall take all steps necessary to call and
hold a special meeting of its shareholders, in accordance with applicable law
and the Articles of Incorporation and Bylaws of American as soon as practicable
(considering the regulatory approvals required to be obtained) for the purpose
of submitting this Agreement to its shareholders for their consideration and
approval and will send to its shareholders for purposes of such meeting a Proxy
Statement which will not contain any untrue statement of a material fact with
respect to American or omit to state a material fact with respect to American
required to be stated therein or necessary to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading, and which otherwise materially complies as to form with all
applicable laws, rules and regulations.
14.2 It is understood that as an integral part of the transaction
contemplated by this Agreement, Wesbanco shall file a Registration Statement
with respect to the offering of its common shares to be issued in the Merger.
The term "Registration Statement" as used in this Agreement includes all
preliminary filings, post-effective amendments and any Proxy Statement of
American. Accordingly, Wesbanco and American agree to assist and cooperate fully
with each other in the preparation of the Registration Statement. Both American
and Wesbanco further agree to deliver to each other, both as of the Effective
Date of the Registration Statement and as of the Closing, a letter, in form and
substance satisfactory to the other party and its counsel, stating that, to the
best of their knowledge and belief, all of the facts with respect to either
Wesbanco or American, as the case may be, set forth in the Registration
Statement, are true and correct in all material respects, and that the
Registration Statement does not omit any material fact necessary to make the
facts stated therein with respect to such party not misleading in light of the
circumstances under which they were made.
SECTION 15
BROKERS
-------
American represents and warrants to Wesbanco and Wesbanco represents
and warrants to American that no broker or finder has been employed, or is
entitled to a fee, commission or other compensation, with respect to this
Agreement or the transactions contemplated hereby, other than fees due from
American to McDonald Investments Inc., its financial advisor.
SECTION 16
GOVERNING LAW; SUCCESSORS AND
ASSIGNS; COUNTERPARTS; ENTIRE AGREEMENT
---------------------------------------
This Agreement (a) shall be governed by and construed under and in
accordance with the laws of the State of West Virginia; (b) shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns, provided, however, that this Agreement may not be
assigned by any party without the written consent of the other parties hereto;
(c) may be executed in one or more counterparts, all of which shall be
considered one and the same agreement, and shall become effective and binding as
to Wesbanco and American when one or more counterparts shall have been signed
and delivered by Wesbanco and American and shall become effective and binding as
to AB when AB receives its Certificate of Incorporation and its officers execute
the Agreement; and (d) embodies the entire Agreement and understanding of the
parties with respect to the subject matter hereof; and (e) supersedes all prior
agreements and understandings, written or oral, between American and Wesbanco
relating to the subject matter hereof.
SECTION 17
EFFECT OF CAPTIONS
------------------
The captions of this Agreement are included for convenience only and
shall not in any way affect the interpretation or construction of any of the
provisions hereof.
SECTION 18
NOTICES
-------
Except as specifically provided in Section 8.21(d) hereof, any notices
or other communication required or permitted hereunder shall be sufficiently
given if delivered personally or sent by first class, registered or certified
mail postage prepaid, with return receipt requested addressed as follows:
To American:
American Bancorporation
0000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
ATTENTION: Xxxxxx X. XxXxxxx, Chairman
With copies to:
Xxxxxx X. Xxxxxxxxxxx, Esq. Xxxxx X. Xxxxxxx, Esq.
0000 Xxxxxxx Xxxxxx Xxxxxxx & Xxxx
Xxxxxxxx, XX 00000 0000 Xxxxxxxxx Xxx., X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
To Wesbanco:
Wesbanco, Inc.
Xxx Xxxx Xxxxx
Xxxxxxxx, XX 00000
ATTENTION: Xxxxxx X. Xxxxxx, President
With a copy to:
Xxxxx X. Xxxxxxx, Esq.
Phillips, Gardill, Xxxxxx & Xxxxxxxx
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
or such other addresses as shall be furnished in writing by either party to the
other party. Any such notice or communication shall be deemed to have been given
as of the date so mailed.
SECTION 19
AMENDMENTS
----------
Any of the terms or conditions of the Agreement may be waived at any
time by the party which is, or the shareholders of which are, entitled to the
benefit thereof, by action taken by the Board of Directors of such party, or any
of such terms or conditions may be amended or modified in whole or in part at
any time as follows. This Agreement may be amended in writing (signed by all
parties hereto) before or after the meeting of American shareholders at any time
prior to the Closing Date with respect to any of the terms contained herein,
provided, however, that if amended after such meeting of shareholders, the
exchange ratio per share at which each share of common stock of American shall
be converted and any other material terms of the Merger shall not be amended
after the meeting of American shareholders unless the amended terms are
resubmitted to the shareholders for approval. Neither the Agreement nor any
provisions hereof, may be changed, waived, discharged or terminated orally, or
by the passage of time, except by a statement in writing signed by the party
against which the enforcement of such change, waiver, discharge or termination
is sought.
SECTION 20
EXPENSES
--------
Each party to this Agreement shall pay its own legal and accounting
fees and other costs and expenses incurred in connection with this Agreement and
the transactions contemplated hereby.
SECTION 21
MISCELLANEOUS
-------------
21.1 PUBLICITY. The parties will not publicly release any information
about the transactions contemplated hereby except as they may mutually agree or
as may be required by law.
21.2 INCORPORATION BY REFERENCE. Any and all schedules, exhibits,
annexes, statements, reports, certificates or other documents or instruments
referred to herein or attached hereto are incorporated herein by reference as
though fully set forth at the point referred to in the Agreement.
21.3 MATERIAL ADVERSE CHANGE. In determining whether there has been a
material adverse change for purposes of this Agreement, transaction costs and
expenses (i.e. accounting, legal and investment banking fees) of the
transactions contemplated hereby shall not be taken into account.
21.4 BINDING DATE. This Agreement is effective and binding as to
Wesbanco and American upon the date first above written and effective and
binding as to AB upon execution hereof by AB.
IN WITNESS WHEREOF, WESBANCO, INC., AMERICAN BANCORPORATION, AB
CORPORATION and WESBANCO BANK, INC. have each caused this Agreement to be
executed on their behalf by their officers thereunto duly authorized all as of
the day and year first above written.
WESBANCO, INC., a West Virginia
corporation
By /S/ Xxxxxx X. Xxxxxx
--------------------------------
Its President & Chief Executive Officer
(SEAL)
ATTEST:
/s/ Xxxxx X. Xxxxxxx
--------------------
Secretary
AMERICAN BANCORPORATION,
an Ohio Corporation
By /s/ Xxxxxx X. Xxxxxxx
------------------------
Its Chairman
(SEAL)
ATTEST:
/s/ Xxxxx Xxxxxxx
------------------
Secretary
AMERICAN BANCORPORATION
By /s/ Xxxxxx X. Xxxxxxx
----------------------------
Xxxxxx X. Xxxxxxx
Chairman and Chief Executive Officer
By /s/ Xxxx X. Xxxxxxx
----------------------------
Xxxx X. Xxxxxxx, Director
By /s/ Xxxx X. Xxxxxxx
----------------------------
Xxxx X. Xxxxxxx, Director
By /s/ Xxxxxxx Xxxxxxx Feinkopf
----------------------------
Xxxxxxx Xxxxxxx Feinkopf, Director
By /s/ Xxx X. Xxxxxxx
----------------------------
Xxx X. Xxxxxxx, Director
By /s/ Xxxxxx X. Xxxxxxx
----------------------------
Xxxxxx X. Xxxxxxx, Director
By /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxx, Director
By /s/ Xxxx X. Xxxxx, Xx.
----------------------------
The Xxxxxxxxx Xxxx X. Xxxxx, Xx.,
Director
(SEAL)
ATTEST:
/s/ Xxxxx Xxxxxxx
------------------
Secretary
AB CORPORATION, a West Virginia
corporation as of the ____ day _____,
2001.
By
----------------------------
Its
---------------------------
(SEAL)
ATTEST:
---------------------
Secretary
WESBANCO BANK, INC., A West Virginia Corporation
By /s/ Xxxxxx X. Xxxxxx
------------------------------------
Its President & Chief Executive Officer
(SEAL)
ATTEST:
/s/ Xxxxxxx X. Xxxxxx
---------------------
Secretary
