Exhibit 2.2
PLAN OF MERGER OF PROGRESSIVE BANK, INC.
WITH AND INTO XXXXXX CHARTERED BANCORP, INC.
THIS PLAN OF MERGER (this "Plan of Merger"), dated as of December 16, 1997,
is by and between PROGRESSIVE BANK, INC. ("Progressive"), a New York
corporation, and XXXXXX CHARTERED BANCORP, INC. ("Xxxxxx Chartered"), a New York
corporation.
WITNESSETH
WHEREAS, the respective Boards of Directors of Progressive and Xxxxxx
Chartered deem the merger of Progressive with and into Xxxxxx Chartered, under
and pursuant to the terms and conditions herein set forth or referred to,
desirable and in the best interests of the respective corporations and their
respective shareholders, and the respective Boards of Directors of Progressive
and Xxxxxx Chartered have adopted resolutions approving this Plan of Merger and
an Agreement and Plan of Reorganization dated of even date herewith (the
"Reorganization Agreement");
WHEREAS, the Board of Directors of Progressive has directed that this Plan
of Merger be submitted to the shareholders of Progressive; and
WHEREAS, the Board of Directors of Xxxxxx Chartered has directed that this
Plan of Merger be submitted to the shareholders of Xxxxxx Chartered;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto do hereby agree that the Plan of
Merger shall be as follows:
ARTICLE I.
MERGER
Subject to the terms and conditions of this Plan of Merger and the
Reorganization Agreement, on the Effective Date (as hereinafter defined),
Progressive shall be merged with and into Xxxxxx Chartered, pursuant to the
provisions of, and with the effect provided in Article 9 of the New York
Business Corporation Law (said transaction being hereinafter referred to as the
"Merger"). On the Effective Date, the separate existence of Progressive shall
cease and Xxxxxx Chartered, as the surviving entity, shall continue unaffected
and unimpaired by the Merger and shall operate under the name "Premier National
Bancorp, Inc." (Xxxxxx Chartered as existing on and after the Effective Date
being hereinafter sometimes referred to as the "Surviving Corporation.")
ARTICLE II.
CERTIFICATE OF INCORPORATION AND BY-LAWS
Upon the Effective Date, the Certificate of Incorporation of the Surviving
Corporation shall be restated in the form to be agreed to by the parties hereto
in good faith and attached hereto as Annex A prior to submission of this Plan of
Merger to the respective shareholders of Progressive and Xxxxxx Chartered (the
"Submission"), and the By-Laws of the Surviving Corporation shall be restated in
the form to be agreed to by the parties hereto in good faith and attached hereto
as Annex B prior to the Submission, in each case until amended in accordance
with applicable law.
ARTICLE III.
BOARD OF DIRECTORS AND OFFICERS
1. From and after the Effective Date, the directors of the Surviving
Corporation, who shall hold office until the expiration of their respective
terms or until their successors are duly elected and qualified, shall be the ten
persons designated by Xxxxxx Chartered and the ten persons designated by
Progressive pursuant to the Reorganization Agreement, or any persons chosen to
replace such designated persons pursuant to the Reorganization Agreement and the
Certificate of Incorporation and By-Laws of the Surviving Corporation. The
directors of the Surviving Corporation shall be divided into three classes as
nearly equal in number as possible, as provided in the Reorganization Agreement.
It is intended by the parties hereto that, following the Effective Date,
T. Xxxxxxxxx Xxxxxxxxxx III shall serve as Chairman of the Board and Chairman of
the Executive Committee of the Board of the Surviving Corporation, Xxxxx Xxx
Xxxxxx shall serve as President and Chief Executive Officer of the Surviving
Corporation, and Xxxx X. XxxXxxxxx shall serve as an Executive Vice President of
the Surviving Corporation, each to serve until their successors are duly elected
and qualified. All other officers of the Surviving Corporation shall be
appointed by resolution of the directors in accordance with the By-Laws of the
Surviving Corporation.
ARTICLE IV.
CAPITAL
1. The designation and number of outstanding shares of capital stock of
Progressive is as follows: (a) 3,831,809 shares of common stock, par value $1.00
per share ("Progressive Common Stock"), and (b) no shares of preferred stock,
par value $1.00 per share ("Progressive Preferred Stock"). Each share of
Progressive Common Stock is entitled
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to vote with respect to the Merger. Such number of outstanding shares of
Progressive Common Stock may be changed prior to the Effective Date as a result
of the exercise of stock options or other rights or upon the repurchase by
Progressive of such shares.
2. The designation and number of outstanding shares of capital stock of
Xxxxxx Chartered is as follows: (a) 7,076,263 shares of common stock, par value
$0.80 per share ("Xxxxxx Chartered Common Stock" until the Effective Date and
"Surviving Corporation Common Stock" from and after the Effective Date); and (b)
no shares of preferred stock, par value $0.01 per share ("Xxxxxx Chartered
Preferred Stock"). Each share of Xxxxxx Chartered Common Stock is entitled to
vote with respect to the Merger. Such number of outstanding shares of Xxxxxx
Chartered Common Stock may be changed prior to the Effective Date as a result of
the exercise of stock options or other rights, the sale of such shares by Xxxxxx
Chartered pursuant to its Dividend Reinvestment and Stock Purchase Plan or upon
the repurchase by Xxxxxx Chartered of such shares.
3. The shares of capital stock of Xxxxxx Chartered issued and outstanding
immediately prior to the Effective Date shall, on the Effective Date, continue
to be issued and outstanding capital stock of the Surviving Corporation.
ARTICLE V.
CONVERSION AND EXCHANGE OF PROGRESSIVE
SHARES; FRACTIONAL SHARE INTERESTS
1. On the Effective Date, each share of Progressive Common Stock
outstanding immediately prior to the Effective Date (except as provided in
Paragraphs 2, 5, 6 and 7 of this Article) shall, by virtue of the Merger, be
converted into 1.82 shares of Surviving Corporation Common Stock (the "Exchange
Ratio") and shall no longer be shares of common stock of Progressive. Each share
of Xxxxxx Chartered Common Stock issued and outstanding immediately before the
Effective Date shall remain an outstanding share of Surviving Corporation Common
Stock after the Effective Date.
2. On the Effective Date, all shares of Progressive Common Stock held in
the treasury of Progressive or owned beneficially by any subsidiary of
Progressive other than in a fiduciary capacity or in connection with a debt
previously contracted and all shares of Progressive Common Stock owned by the
Surviving Corporation or owned beneficially by any subsidiary of the Surviving
Corporation other than in a fiduciary capacity or in connection with a debt
previously
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contracted shall be canceled and no cash, stock or other property shall be
delivered in exchange therefor.
3. On and after the Effective Date, each holder of a certificate or
certificates theretofore representing outstanding shares of Progressive Common
Stock (any such certificate being hereinafter referred to as a "Certificate")
may surrender the same to the Surviving Corporation or its agent for
cancellation and each such holder shall be entitled upon such surrender to
receive in exchange therefor certificate(s) representing the number of whole
shares of Surviving Corporation Common Stock to which such holder is entitled as
provided herein and a check in an amount equal to the amount of cash, without
interest, to which such holder is entitled for fractional shares. As soon as
practicable after the Effective Date, the Surviving Corporation or its agent
will send a notice and transmittal form to each Progressive stockholder of
record at the Effective Date whose Progressive Common Stock shall have been
converted into Surviving Corporation Common Stock advising such stockholder of
the effectiveness of the Merger and the procedure for surrendering to the
Surviving Corporation or its agent outstanding certificates formerly
representing Progressive Common Stock in exchange for new certificates for
Surviving Corporation Common Stock. Until so surrendered, each Certificate shall
be deemed for all purposes to evidence ownership of the number of whole shares
of Surviving Corporation Common Stock into which the shares represented by such
Certificates have been changed or converted as aforesaid and the right to
receive cash for fractional shares. Certificates surrendered for exchange by any
person who is an "affiliate" of Progressive for purposes of Rule 145(c) under
the Securities Act of 1933, as amended, shall not be exchanged for certificates
representing shares of Surviving Corporation Common Stock until the Surviving
Corporation has received the written agreement of such person contemplated by
Section 4.10 of the Reorganization Agreement. If any certificate surrendered for
exchange is to be issued in a name other than that in which a certificate
surrendered for exchange is issued, the certificate so surrendered shall be
properly endorsed and otherwise in proper form for transfer and the person
requesting such exchange shall affix any requisite stock transfer tax stamps to
the certificate surrendered or provide funds for their purchase or establish to
the satisfaction of the Surviving Corporation or its agent that such taxes are
not payable.
4. Upon the Effective Date, the stock transfer books of Progressive shall
be closed and no transfer of Progressive Common Stock shall thereafter be made
or recognized. Any other provision of this Plan of Merger notwithstanding,
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neither the Surviving Corporation or its agent nor any party to the Merger shall
be liable to a holder of Progressive Common Stock for any amount properly paid
or property delivered in good faith to a public official pursuant to any
applicable abandoned property, escheat or similar law.
5. To the extent dissenters' rights apply under New York law, no conversion
under Paragraph 1 of this Article V shall be made in respect of any share of
Progressive Common Stock as to which a Progressive shareholder has elected to
exercise dissenters' rights pursuant to Section 910 of the New York Business
Corporation Law, as amended, if any, until such time as such shareholder shall
have effectively lost dissenters' rights.
6. In the event that during the period commencing on the date hereof and
ending on the Effective Date, the outstanding shares of Xxxxxx Chartered Common
Stock shall have been increased, decreased or changed into or exchanged for a
different number or kind of shares or securities by reorganization,
recapitalization, reclassification, stock dividend, stock split or other like
changes in Xxxxxx Chartered's capitalization, all without Xxxxxx Chartered's
receiving consideration therefor, then an appropriate and proportionate
adjustment shall be made in the number and kind of shares of Surviving
Corporation Common Stock to be thereafter delivered pursuant to this Plan of
Merger.
7. Notwithstanding any other provision hereof, each holder of shares of
Progressive Common Stock who would otherwise have been entitled to receive a
fraction of a share of Surviving Corporation Common Stock (after taking into
account all Certificates delivered by such holder) shall receive, in lieu
thereof, upon presentation of such Certificates, cash in an amount equal to such
fractional part of a share of Surviving Corporation Common Stock multiplied by
the market value of such Surviving Corporation Common Stock. The market value of
one share of Surviving Corporation Common Stock on the Effective Date shall be
the closing price of Xxxxxx Chartered Common Stock on the American Stock
Exchange (as reported by The Wall Street Journal) on the last business day
preceding such date. No such holder shall be entitled to dividends, voting
rights or any other shareholder right in respect of any fractional share.
8. On the Effective Date, Progressive's obligations with respect to stock
options granted under the Progressive Stock-Based Compensation Plans (as that
term is defined in the Reorganization Agreement) shall be assumed by the
Surviving Corporation. At the Effective Date, each option to
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purchase or other right with respect to shares of Progressive Common Stock
pursuant to stock options, stock appreciation rights or other rights, including
stock awards ("Progressive Options") granted by Progressive under the
Progressive stock option plans, which are outstanding at the Effective Date
whether or not exercisable, shall be converted into and become rights with
respect to Surviving Corporation Common Stock, and the Surviving Corporation
shall assume each Progressive Option, in accordance with the terms of the
applicable Progressive stock plan and stock option or other agreement by which
it is evidenced, except that, from and after the Effective Date, (i) the number
of shares of Surviving Corporation Common Stock subject to each Progressive
Option shall be equal to the number of shares of Progressive Common Stock
subject to such Progressive Option immediately prior to the Effective Date
multiplied by the Exchange Ratio, and (ii) the per share exercise price under
each such Progressive Option shall be adjusted by dividing the per share
exercise price under each such Progressive Option by the Exchange Ratio, rounded
up to the nearest cent. Notwithstanding the provisions of clause (i) of the
preceding sentence, the Surviving Corporation shall not be obligated to issue
any fraction of a share of Surviving Corporation Common Stock upon exercise of
Progressive Options and any fraction of a share of Surviving Corporation Common
Stock that otherwise would be subject to a converted Progressive Option shall
represent the right to receive a cash payment upon exercise of such converted
Progressive Option equal to the product of such fraction and the market value of
one share of the Surviving Corporation Common Stock, as determined in the manner
set forth in next succeeding sentence, less the exercise price attributable to
such fractional share, rounded down to the nearest cent. The market value of one
share of the Surviving Corporation Common Stock at the time of exercise of an
Option shall be the closing price of such common stock on the national exchange
on which such stock is traded (as reported by The Wall Street Journal) on the
last trading day preceding the exercise date. In addition, notwithstanding
clauses (i) and (ii) of this paragraph 8, in respect of any stock option which
is an "incentive stock option" within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended ("Code"), the conversion hereinabove provided
for shall comply with the requirements of Section 424(a) of the Code, including
the requirement that such converted options shall not give to the holder thereof
any benefits additional to those which such holder had prior to such conversion
under the option as originally granted.
9. As soon as practicable after the Effective Date, the Surviving
Corporation shall deliver to the participants in each Progressive stock plan an
appropriate notice setting
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forth such participant's rights pursuant thereto and the grants subject to such
Progressive stock plan shall continue in effect on the same terms and conditions
(subject to the adjustments required by Paragraph 8 of this Article V after
giving effect to the Merger), and the Surviving Corporation shall comply with
the terms of each Progressive stock plan to ensure, to the extent required by,
and subject to the provisions of, such Progressive stock plan, that Progressive
Options which qualified as incentive stock options prior to the Effective Date
continue to qualify as incentive stock options after the Effective Date.
10. Xxxxxx Chartered shall reserve for issuance a sufficient number of
shares of Xxxxxx Chartered Common Stock for the purpose of issuing its shares to
Progressive's shareholders in accordance with this Article V. At all times after
the Effective Date, the Surviving Corporation shall reserve for issuance such
number of shares of Surviving Corporation Common Stock as necessary so as to
permit exercise of options granted under the Progressive option plans in the
manner contemplated in Paragraph 8 of this Article V of this Plan of Merger and
the instruments pursuant to which such options are granted.
ARTICLE VI.
EFFECTIVE DATE OF THE MERGER
A certificate of merger evidencing the transactions contemplated herein
shall be delivered to the New York Department of State for filing as provided in
the Reorganization Agreement. The Merger shall be effective at the time and on
the date specified in such certificate of merger (such date and time being
herein referred to as the "Effective Date").
ARTICLE VII.
FURTHER ASSURANCES
If at any time the Surviving Corporation shall consider or be advised that
any further assignments, conveyances or assurances are necessary or desirable to
vest, perfect or confirm in the Surviving Corporation title to any property or
rights of Progressive, or otherwise carry out the provisions hereof, the proper
officers and directors of Progressive, as of the Effective Date, and thereafter
the officers of the Surviving Corporation acting on behalf of Progressive, shall
execute and deliver any and all proper assignments, conveyances and assurances,
and do all things necessary or desirable to vest, perfect or confirm title to
such property or rights in the Surviving Corporation and otherwise carry out the
provisions hereof.
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ARTICLE VIII.
CONDITIONS PRECEDENT
The obligations of Xxxxxx Chartered and Progressive to effect the Merger as
herein provided shall be subject to satisfaction, unless duly waived, of the
conditions set forth in the Reorganization Agreement.
ARTICLE IX.
TERMINATION
Anything contained in this Plan of Merger to the contrary notwithstanding,
and notwithstanding adoption hereof by the shareholders of Progressive and
Xxxxxx Chartered, this Plan of Merger may be terminated and the Merger abandoned
as provided in the Reorganization Agreement. If the Reorganization Agreement is
terminated, then this Plan of Merger shall terminate automatically, without
further action of the parties.
ARTICLE X.
MISCELLANEOUS
1. This Plan of Merger may be amended or supplemented at any time prior to
its Effective Date by mutual agreement of Xxxxxx Chartered and Progressive. Any
such amendment or supplement must be in writing and approved by their respective
Boards of Directors and/or by officers authorized thereby and shall be subject
to the proviso in Section 6.4 of the Reorganization Agreement.
2. Any notice or other communication required or permitted under this Plan
of Merger shall be given, and shall be effective, in accordance with the
provisions of the Reorganization Agreement.
3. The headings of the several Articles herein are inserted for convenience
of reference only and are not intended to be a part of or to affect the meaning
or interpretation of this Plan of Merger.
4. This Plan of Merger shall be governed by and construed in accordance
with the laws of the State of New York applicable to agreements made and
entirely to be performed in such jurisdiction, except to the extent Federal law
may be applicable.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Plan of Merger to be executed in counterparts by their
duly authorized officers and their corporate seal to be hereunto affixed and
attested by their officers thereunto duly authorized, all as of the day and year
first above written.
Attest XXXXXX CHARTERED BANCORP, INC.
______________________ By _____________________________
Xxxxx X. Xxxxxxxx T. Xxxxxxxxx Xxxxxxxxxx III
Assistant Secretary Chairman and Chief Executive
Officer
(SEAL)
Attest PROGRESSIVE BANK, INC.
______________________ By _____________________________
Xxxxxxxx X. Parent Xxxxx Xxx Xxxxxx
Corporate Secretary President and Chief Executive
Officer
(SEAL)
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ANNEX A
RESTATED CERTIFICATE OF INCORPORATION
OF THE SURVIVING CORPORATION
ANNEX B
RESTATED BY-LAWS OF THE SURVIVING CORPORATION
