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EXHIBIT 2.2
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "Reorganization
Agreement"), dated as of March 24, 1997, is by and among COMMUNITY
BANKSHARES, INC. ("Community"), a New Hampshire corporation, CONCORD
SAVINGS BANK ("Concord Bank"), a New Hampshire state-chartered savings
bank, CENTERPOINT BANK, a New Hampshire state-chartered commercial bank
(Concord Bank and Centerpoint Bank being referred to together herein as the
"Community Banks"), CFX CORPORATION ("CFX"), a New Hampshire corporation,
and CFX BANK, a New Hampshire state-chartered savings bank.
WITNESSETH
WHEREAS, the parties hereto desire to combine their respective
businesses on the terms and subject to the conditions of this
Reorganization Agreement;
WHEREAS, the parties hereto desire that CFX acquire all the
outstanding shares of capital stock of Community, including each attached
right issued pursuant to the Community Rights Agreement (as defined below),
through an exchange (the "Share Exchange") of shares of CFX Common Stock
(as defined below) for the issued and outstanding shares of Community
Common Stock (as defined below) pursuant to a Plan of Share Exchange (the
"Plan of Exchange") in the form attached hereto as Annex A;
WHEREAS, the parties desire that, following the Share Exchange,
Community shall be merged (the "Holding Company Merger") with and into CFX,
pursuant to a merger agreement or plan of merger (the "Merger Agreement")
in a form to be specified by CFX and reasonably satisfactory to Community
and consistent with the terms of this Reorganization Agreement;
WHEREAS, the parties desire that, following the consummation of the
Holding Company Merger, the Community Banks, wholly owned subsidiaries of
Community, shall be merged (the "Bank Merger") with and into CFX Bank, a
wholly-owned subsidiary of CFX, pursuant to an Agreement and Plan of Merger
(the "Plan of Merger") in the form attached hereto as Annex B;
WHEREAS, in connection with the execution of this Reorganization
Agreement, Community and CFX have entered into a Stock Option Agreement
(the "Stock Option Agreement") dated as of even date herewith pursuant to
which Community will grant CFX the right to purchase certain shares of
Community Common Stock; and
WHEREAS, the parties hereto desire to provide for certain
undertakings, conditions, representations, warranties and covenants in
connection with Share Exchange, the Holding Company Merger, the Bank Merger
and the other transactions (collectively, the "Transactions") contemplated
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by this Reorganization Agreement, the Plan of Exchange, the Merger
Agreement, the Plan of Merger and the Stock Option Agreement (collectively,
the "Transaction Documents");
WHEREAS, it is intended that all of the parties hereto except
Centerpoint Bank shall execute this Reorganization Agreement on the date
first above written, with Centerpoint Bank to execute this Reorganization
Agreement, as promptly thereafter as practicable, as provided in Section
4.7(d) hereof;
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties and covenants herein contained and intending to
be legally bound hereby, the parties hereto do hereby agree as follows:
ARTICLE 1.
CERTAIN DEFINITIONS
1.1. "AMEX" shall mean the American Stock Exchange, Inc.
1.2. "BHC Act" shall mean the Bank Holding Company Act of 1956, as
amended.
1.3. "CFX Entities" shall mean CFX and the CFX Subsidiaries.
1.4. "CFX Financial Statements" shall mean (i) the consolidated
balance sheets of CFX as of September 30, 1996 and as of December 31, 1995
and 1994 and the related consolidated statements of income, cash flows and
changes in shareholders' equity (including related notes, if any) for the
nine months ended September 30, 1996 and each of the three years ended
December 31, 1995, 1994 and 1993 as filed by CFX in SEC Documents, together
with the consolidated balance sheet of CFX and the related consolidated
statements of income, cash flows and changes in shareholders' equity
(including related notes, if any) as of and for the period ended December
31, 1996, as delivered to Community prior to the date hereof
and (ii) the consolidated balance sheets of CFX and related consolidated
statements of income, cash flows and changes in shareholders' equity
(including related notes, if any) as filed by CFX in SEC Documents with
respect to periods ended subsequent to September 30, 1996.
1.5. "Closing Date" shall mean the date specified pursuant to
Section 4.8 hereof as the date on which the Parties shall close the
Transactions.
1.6. "Code" shall mean the Internal Revenue Code of 1986, as
amended.
1.7. "Commissioner" shall mean the New Hampshire State Bank
Commissioner.
1.8. "Community Entities" shall mean Community and the Community
Subsidiaries.
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1.9. "Community Financial Statements" shall mean (i) the
consolidated balance sheets of Community as of September 30, 1996 and as of
December 31, 1995 and 1994 and the related consolidated statements of
income, cash flows and changes in shareholders' equity (including related
notes, if any) for the nine months ended September 30, 1996 and each of the
three years ended December 31, 1995, 1994 and 1993 as filed by Community in
SEC Documents, together with the consolidated balance sheet of Community
and the related consolidated statements of income, cash flows and changes
in shareholders' equity (including related notes, if any) as of and for the
period ended December 31, 1996, as delivered to CFX prior to the date
hereof and (ii) the consolidated balance sheets of Community and related
consolidated statements of income, cash flows and changes in shareholders'
equity (including related notes, if any) as filed by Community in SEC
Documents with respect to periods ended subsequent to September 30, 1996.
1.10. "Effective Date" shall mean the date specified pursuant to
Section 4.8 hereof as the effective date of the Share Exchange.
1.11. "ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
1.12. "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
1.13. "FDIA" shall mean the Federal Deposit Insurance Act.
1.14. "FDIC" shall mean the Federal Deposit Insurance Corporation.
1.15. "Federal Reserve" shall mean the Board of Governors of the
Federal Reserve System or any appropriate Federal Reserve Bank.
1.16. "Intellectual Property" means domestic and foreign letters
patent, patents, patent applications, patent licenses, software licensed or
owned, know-how, know-how licenses, trade names, common law and other
trademarks, service marks, licenses of trademarks, trade names and/or
service marks, trademark registrations and applications, service xxxx
registrations and applications and copyright registrations and
applications.
1.17. "Investment Company Act" means the Investment Company Act of
1940, as amended.
1.18. "Material Adverse Effect" shall mean, with respect to Community
or CFX, as the case may be, a material adverse effect on (A) the business,
results of operations or financial condition of such party and its
subsidiaries taken as a whole (provided, however, that the following shall
not constitute or contribute to a Material Adverse Effect: (i) changes in
the financial condition, business, or results of operations of a person
resulting directly or indirectly from (1) changes in interest rates
(provided that Community is in compliance with its asset/liability
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management policy as Previously Disclosed to CFX, as the same may be
revised thereafter with CFX's concurrence), or (2) changes in state and
federal regulations or legislation affecting New Hampshire banks; or (ii)
matters related to changes in federal, state or local tax laws or changes
in federal, state or local tax status, characteristics, or attributes or
the ability to use such attributes); or (B) the ability of any Party to
perform its obligations under, and to consummate the transactions
contemplated by, the Transaction Documents.
1.19. "Parties" shall mean CFX, CFX Bank, Community and the Community
Banks.
1.20. "Previously Disclosed" shall mean disclosed prior to the
execution hereof in (i) an SEC Document filed with the SEC subsequent to
December 31, 1995 and prior to the date hereof, or (ii) a letter dated of
even date herewith from the Party making such disclosure and delivered to
the other Parties prior to the execution hereof.
1.21. "Proxy Statement" shall mean the proxy statement/prospectus (or
similar documents) together with any supplements thereto sent to the
shareholders of CFX or Community to solicit their votes in connection with
this Reorganization Agreement and the Plan of Exchange.
1.22. "Registration Statement" shall mean the registration statement
with respect to the CFX Common Stock to be issued in connection with the
Share Exchange as declared effective by the SEC under the Securities Act,
if required.
1.23. "Rights" shall mean subscriptions, warrants, options, rights,
calls, agreements, understandings or commitments of any character calling
for the transfer, purchase, issuance or disposition of, or representing the
right to purchase, acquire, subscribe to or otherwise receive any shares of
capital stock, or any securities convertible into or representing the right
to purchase, acquire, subscribe to or otherwise receive any shares of
capital stock, or any stock appreciation rights, performance units and
other similar stock-based rights whether they obligate the issuer thereof
to issue stock or other securities or to pay cash.
1.24. "SEC" shall mean the Securities and Exchange Commission.
1.25. "SEC Documents" shall mean all reports and registration
statements filed, or required to be filed, by a Party pursuant to the
Securities Laws.
1.26. "Securities Act" shall mean the Securities Act of 1933, as
amended.
1.27. "Securities Laws" shall mean the Securities Act; the Exchange
Act; the Investment Company Act; the Investment Advisers Act of 1940, as
amended; the Trust Indenture Act of 1939, as amended; and the rules and
regulations of the SEC promulgated thereunder.
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Other terms used herein are defined in the preamble and the recitals
to this Reorganization Agreement and in Articles II, III and IV hereof.
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES OF COMMUNITY AND THE COMMUNITY BANKS
Community and the Community Banks hereby represent and warrant to CFX
and CFX Bank that, except as Previously Disclosed:
2.1. Capital Structure of Community
(a) The authorized capital stock of Community consists solely of
3,000,000 shares of common stock, par value $1.00 per share ("Community
Common Stock"), and 1,000,000 shares of preferred stock, par value $1.00
per share ("Community Preferred Stock"). There are 2,465,237 shares of
Community Common Stock issued and outstanding, no shares of Community Common
Stock held in its treasury, no shares of Community Preferred Stock issued
and outstanding, and no shares of Community Preferred Stock held in its
treasury. No shares of Community Common Stock or Community Preferred Stock
are reserved for issuance, except that (i) 36,924 shares of Community Common
Stock are reserved for issuance under Community's employee stock purchase
plans (the "Community Stock Purchase Plans"), (ii) 143,781 shares of Community
Common Stock are reserved for issuance upon the exercise of stock options
heretofore granted pursuant to Community's stock option plans (the "Community
Stock Option Plans") and (iii) 24,653 shares of Community Preferred Stock are
reserved for issuance upon the exercise of rights pursuant to the Rights
Agreement dated as of October 31, 1989 between Community and the First
National Bank of Boston (the "Community Rights Agreement").
(b) Except for shares of Community Common Stock subject to purchase
under the Community Stock Purchase Plans or subject to options under the
Community Stock Option Plans as Previously Disclosed and to the Stock
Option Agreement and shares of Community Preferred Stock subject to the
Community Rights Agreement, Community is not bound by any outstanding
Rights. Except for the Community Rights Agreement and the Stock Option
Agreement, there are no agreements, understandings or commitments to which
Community is a party with respect to the voting of any shares of Community
Common Stock or which restrict the transfer of such shares.
(c) All outstanding shares of Community's capital stock have been
duly issued and are validly outstanding, fully paid and nonassessable.
None of the shares of Community's capital stock has been issued in
violation of the preemptive rights of any person. All options granted
under the Community Stock Option Plans have become fully exercisable in
accordance therewith or in accordance with certain change in control
agreements that have been Previously Disclosed.
2.2. Organization, Standing and Authority of Community
Community is a duly organized corporation, validly existing and in
good standing under the laws of New Hampshire, with full corporate power
and authority to carry on its business as now conducted and is duly
licensed or qualified to do business in the states of the United States and
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foreign jurisdictions where its ownership or leasing of property or the
conduct of its business requires such qualification, except where the
failure to be so licensed or qualified would not have a Material Adverse
Effect on Community. Community is registered as a bank holding company
under the BHC Act.
2.3. Ownership and Capital Structure of the Community Subsidiaries
(a) Community does not own, directly or indirectly, 5 percent or
more of the outstanding capital stock or other voting securities of any
corporation, bank or other organization, except as Previously Disclosed
(collectively, the "Community Subsidiaries" and individually a "Community
Subsidiary").
(b) The authorized and issued capital stock of each of the
Community Subsidiaries has been Previously Disclosed.
(c) The outstanding shares of capital stock of each Community
Subsidiary are validly issued and outstanding, fully paid and nonassessable
and all such shares are directly or indirectly owned by Community free and
clear of all liens, claims and encumbrances, subject, in the case of
Concord Bank, to the Distribution and Liquidation Account (the "Liquidation
Account") established by Concord in connection with its conversion from
mutual to stock form and maintained pursuant to Article 7 of Concord Bank's
Amended and Restated Charter. No Community Subsidiary is bound by any
Rights with respect to its capital securities and there are no agreements,
understandings or commitments relating to the right of Community to vote or
dispose of said shares. None of the shares of capital stock of any
Community Subsidiary has been issued in violation of the preemptive rights
of any person whose cause of action is not time barred by any applicable
statute of limitations. Concord Bank has established and maintained the
Liquidation Account in accordance with all applicable laws and regulations.
2.4. Organization, Standing and Authority of the Community Subsidiaries
Each of the Community Subsidiaries is a corporation, savings bank or
commercial bank duly organized, validly existing and in good standing under
the laws of New Hampshire with full power and authority to carry on its
business as now conducted and is duly licensed or qualified to do business
in the states of the United States and foreign jurisdictions where its
ownership or leasing of property or the conduct of its business requires
such qualification, except where the failure to be so licensed or qualified
would not have a Material Adverse Effect on Community. Neither of the
Community Banks engages in any activities other than those expressly
authorized to it by applicable New Hampshire and federal banking laws,
including without limitation the regulations of the FDIC under Section 24
of the FDIA. Each of the Community Banks is a member in good standing of
the Federal Home Loan Bank of Boston and owns the requisite amount of stock
therein. The deposits of each of the Community Banks are insured by the
Bank Insurance Fund of the FDIC in accordance with the FDIA, and each of
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the Community Banks has paid all assessments that have come due and has
filed all reports required by the FDIA.
2.5. Authorized and Effective Agreement
(a) Community has all requisite corporate power and authority to
enter into and perform all its obligations under the Transaction Documents
to which Community is a party. The adoption, execution and delivery of the
Transaction Documents to which Community is a party and the consummation of
the Transactions contemplated thereby have been duly and validly authorized
by all necessary corporate action in respect thereof on the part of
Community, including without limitation the approval of a majority of the
"Disinterested Directors" as contemplated by Article Ninth, Section A of
Community's Articles of Incorporation, except that (1) pursuant to
applicable New Hampshire law and Community's Articles of Incorporation and
By-laws, the Plan of Exchange must be approved by the affirmative vote of
the holders of not less than two-thirds of all the shares of Community
Common Stock entitled to vote thereon, and (2) pursuant to applicable New
Hampshire law, certain required or appropriate actions may or must be taken
with respect to the rights of any dissenting shareholders. The Board of
Directors of Community has directed that the Transaction Documents and the
Transactions be, to the extent necessary, submitted to Community's
stockholders for approval at an annual or special meeting to be held as
soon as practicable.
(b) Each of the Community Banks has all requisite corporate power
and authority to enter into and perform all its obligations under the
Transaction Documents to which it is a party. The execution and delivery
of this Reorganization Agreement and the Plan of Merger and the
consummation of the Transactions contemplated thereby have been duly and
validly authorized by all necessary corporate action in respect thereof on
the part of the Community Banks.
(c) Assuming the accuracy of the representations contained in
Section 3.5(c) hereof, the Transaction Documents constitute legal, valid
and binding obligations of the Community Entities, enforceable against them
in accordance with their respective terms subject, as to enforceability, to
bankruptcy, insolvency and other laws of general applicability relating to
or affecting creditors' rights and to general principles of equity.
(d) Except as Previously Disclosed, and except for such violations,
rights, conflicts, breaches, creations or defaults which, either
individually or in the aggregate, will not have a Material Adverse Effect
on Community, neither the adoption, execution and delivery of the
Transaction Documents nor the consummation of the Transactions nor
compliance by the Community Entities with any of the provisions hereof or
thereof shall (i) conflict with or result in a breach of any provision of
the articles or certificates of incorporation or association, charters or
by-laws of any of the Community Entities, (ii) assuming that the regulatory
approvals referred to in Section 5.1(b) hereof are duly obtained,
constitute or result in a breach of any term, condition or provision of, or
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constitute a default under, or give rise to any right of termination,
cancellation or acceleration with respect to, or result in the creation of
any lien, charge or encumbrance upon any property or asset of any Community
Entity pursuant to, any note, bond, mortgage, indenture, license, agreement
or other instrument or obligation, or (iii) assuming that the regulatory
approvals referred to in Section 5.1(b) hereof are duly obtained, violate
any order, writ, injunction, decree, statute, rule or regulation applicable
to any Community Entity.
(e) Except for the approvals specified in Sections 4.2 and 4.4
hereof, except as Previously Disclosed and except as expressly referred to
in this Reorganization Agreement, no consent, approval or authorization of,
or declaration, notice, filing or registration with, any governmental or
regulatory authority, or any other person, is required to be made or
obtained by the Community Entities on or prior to the Closing Date in
connection with the execution, delivery and performance of the Transaction
Documents or the consummation of the Transactions other than the filing of
certificates or articles of merger or share exchange or similar documents
with the appropriate New Hampshire state authorities.
2.6. SEC Documents; Regulatory Filings
Community has, since January 1, 1992, filed all SEC Documents
required by the Securities Laws and such SEC Documents complied, as of
their respective dates, in all material respects with the Securities Laws.
As of their respective dates, no such SEC Documents filed with the SEC
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances in which they were
made, not misleading, except that information filed as of a later date
shall be deemed to modify information as of an earlier date. Each of the
Community Entities has, since January 1992, filed all reports required by
statute or regulation to be filed with any federal or state bank regulatory
agency, and such reports were prepared in accordance with the applicable
statutes, regulations and instructions in existence as of the date of
filing of such reports in all material respects.
2.7. Financial Statements; Books and Records; Minute Books
The Community Financial Statements fairly present, or when filed will
fairly present, in all material respects, the consolidated financial
position of the Community Entities as of the dates indicated and the
results of operations, changes in shareholders' equity and cash flows of
the Community Entities for the periods then ended in conformity with
generally accepted accounting principles applicable to banking
organizations or financial institutions applied on a consistent basis
(except as disclosed therein and except for the omission of notes for
unaudited financial statements and year-end adjustments to interim
results). The books and records of each of the Community Entities fairly
reflect in all material respects the transactions to which it is a party or
to or by which its properties are subject or bound. Such books and records
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have been properly kept and maintained and are in compliance in all
material respects with all applicable legal and accounting requirements.
The minute books of the Community Entities contain records which are
accurate in all material respects of all corporate actions of their
respective shareholders and Boards of Directors (including committees of
their respective Boards of Directors).
2.8. Material Adverse Change
Community has not, on a consolidated basis, suffered any Material
Adverse Effect in its financial condition, results of operations or
business since December 31, 1996.
2.9. Absence of Undisclosed Liabilities
None of the Community Entities has any liability (contingent or
otherwise) that is material to Community, on a consolidated basis or that,
when combined with all similar liabilities, would be material to the
Community Entities, except as Previously Disclosed, as disclosed in the
Community Financial Statements described in clause (i) of Section 1.9
hereof and except for liabilities incurred in the ordinary course of
business subsequent to December 31, 1996.
2.10. Properties
The Community Entities have good title free and clear of all liens,
encumbrances, charges, defaults or equitable interests to all of their
respective properties and assets, real and personal that are reflected on
the Community Financial Statements as of September 30, 1996 or acquired
after such date, except (i) as may be reflected in the Community Financial
Statements, (ii) for liens for taxes not yet delinquent, (iii) for liens on
real estate acquired by foreclosure or substantively repossessed, (iv) for
pledges to secure deposits and other liens incurred in the ordinary course
of banking business, (v) for such imperfections of title, easements,
encumbrances, liens, charges, defaults and equitable interests, if any,
that do not have a Material Adverse Effect on the value of personal or real
property reflected in the Community Financial Statements or acquired since
the date of such statements and which do not materially interfere with or
impair the present and continued use of such property, and (vi) for
dispositions and encumbrances in the ordinary course of business. All
leases pursuant to which any of the Community Entities, as lessee, leases
real and personal property which, individually or in the aggregate, are
material to the business of the Community Entities are valid and
enforceable by one or both of the Community Entities in accordance with
their respective terms.
2.11. Loans; Allowance for Possible Loan Losses
(a) Each loan reflected as an asset in the Community Financial
Statements (i) is evidenced by notes, agreements or other evidences of
indebtedness which are true, genuine and what they purport to be, (ii) to
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the extent secured, has been secured by valid liens and security interests
which have been perfected, and (iii) is not subject to any known defenses,
set-off or counterclaims except as may be provided under bankruptcy,
insolvency, fraudulent conveyance and other laws of general applicability
relating to or affecting creditors' rights and to general principles of
equity.
(b) The Community Entities have Previously Disclosed all loans in
the original principal amount in excess of $200,000 of each Community
Entity that, as of the date of this Reorganization Agreement, are
classified by Community or any state or federal bank regulatory or
supervisory authority as "Special Mention," "Substandard," "Doubtful,"
"Loss" or "Classified," together with the aggregate principal amount of and
accrued and unpaid interest on such loans, by category, it being understood
that no representation is being made that any state or federal bank
regulatory or supervisory authority would agree with such loan
classifications.
(c) Except as Previously Disclosed or as identified in the notes to
the Community Financial Statements, as of September 30, 1996, neither of
the Community Banks was, as of the date hereof, a party to any loan,
including any loan guaranty, in the amount of $50,000 or more, with any
director, executive officer or 5% shareholder of Community or any person,
corporation or enterprise controlling, controlled by or under common
control with any of the foregoing. All loans and extensions of credit that
have been made by the Community Banks and that are subject to Section 22(h)
of the Federal Reserve Act, comply therewith.
2.12. Tax Matters
Except as Previously Disclosed:
(a) Each of the Community Entities has timely filed federal income
tax returns for each year through December 31, 1995 and has timely filed
all other material federal, state, local and foreign tax returns
(including, without limitation, estimated tax returns, returns required
under Sections 1441-1446 and 6031-6060 of the Code and the regulations
thereunder and any comparable state, foreign and local laws, any other
information returns, withholding tax returns, FICA and FUTA returns and
back-up withholding returns required under Section 3406 of the Code and any
comparable state, foreign and local laws) required to be filed with respect
to the Community Entities. All taxes due in respect of the periods covered
by such tax returns and for any subsequent periods have been paid or
adequate reserves have been established for the payment of such taxes. As
of the Closing Date, all material taxes due in respect of any subsequent
periods ending on or prior to the Closing Date (or that portion of any
period that is prior to the Closing Date) will have been paid or adequate
reserves will have been established for the payment thereof. No (i) audit
examination, (ii) deficiency or (iii) refund litigation with respect to any
tax is pending. The Community Entities will not have any material
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liability for any taxes in excess of amounts paid or reserves or accruals
established.
(b) All federal, state and local (and, if applicable, foreign) tax
returns filed by the Community Entities are complete and accurate in all
material respects. None of the Community Entities is delinquent in the
payment of any material tax, assessment or governmental charge, and no
Community Entity has requested any extension of time within which to file
any tax returns in respect of any fiscal year or portion thereof which have
not since been filed. No deficiency for any tax, assessment or
governmental charge has been proposed, asserted or assessed (tentatively or
otherwise) against any Community Entity which has not been settled and
paid. There are currently no agreements in effect with respect to any
Community Entity to extend the period of limitations for the assessment or
collection of any tax.
2.13. Employee Benefits; ERISA
(a) The Community Entities have Previously Disclosed a true and
complete list of each bonus, deferred compensation, incentive compensation,
stock purchase, stock option, severance pay, medical, life or other
insurance, profit-sharing, or pension plan, program, agreement or
arrangement, and each other employee benefit plan, program, agreement or
arrangement, sponsored, maintained or contributed to or required to be
contributed to by any Community Entity or by any trade or business, whether
or not incorporated, that together with any Community Entity would be
deemed a "single employer" under Section 414 of the Code (an "ERISA
Affiliate") for the benefit of any employee or director (including advisory
directors) or former employee or former director (including advisory
directors) of any Community Entity, whether formal or informal and whether
legally binding or not (the "Plans"). None of the Community Entities has
any formal plan or commitment, whether legally binding or not, to create
any additional plan or modify or change any existing Plan that would affect
any employee or director or former employee or former director of any
Community Entity.
(b) With respect to each of the Plans, the Community Entities have
made available to CFX true and complete copies of each of the following
documents: (a) the Plan and related documents (including all amendments
thereto); (b) the two most recent annual reports and financial statements,
if any; (c) the most recent Summary Plan Description, together with each
Summary of Material Modifications, required under ERISA with respect to
such Plan, and all material employee communications relating to such Plan;
and (d) the most recent determination letter received from the IRS with
respect to each Plan that is intended to be qualified under the Code and
all material communications to or from the IRS or any other governmental or
regulatory authority relating to each Plan.
(c) No liability under Title IV of ERISA has been incurred by any
Community Entity or any ERISA Affiliate since the effective date of ERISA
that has not been satisfied in full, and no condition exists that presents
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a material risk to Community or any ERISA Affiliate of incurring a
liability under such Title. No reportable event under Section 4043 of
ERISA (other than the reportable event described in Pension Benefit
Guaranty Corporation Regulation Section 2615.23 occurring by reason of the
Transactions) has occurred or will occur with respect to any Plan on or
before the Closing Date or the Effective Date.
(d) No Community Entity, no ERISA Affiliate, no Plan, no trust
created thereunder, and no trustee or administrator thereof has engaged in
a transaction in connection with which any Community Entity, any Plan, any
trust, or any trustee or administrator thereof, could be subject to either
a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA, or a
tax imposed pursuant to Section 4975 or 4976 of the Code.
(e) Full payment has been made, or will be made in accordance with
Section 404(a)(6) of the Code, of all amounts that any Community Entity or
any ERISA Affiliate is required to pay under Section 412 of the Code or
under the terms of the Plans, and all such amounts properly accrued through
the Closing Date or the Effective Date will be paid on or prior to the
Closing Date or the Effective Date (as applicable) or will be properly
recorded on the books and records of Community. None of the Plans or any
trust established thereunder has incurred any "accumulated funding
deficiency" (as defined in Section 302 of ERISA and Section 412 of the
Code), whether or not waived.
(f) Except as Previously Disclosed, with respect to each Plan that
is subject to Title IV of ERISA, the present value of accrued benefits
under such Plan, based upon the actuarial assumptions used for funding
purposes in the most recent actuarial report prepared by such Plan's
actuary with respect to such Plan, did not, as of the valuation date used
in such report, exceed the current value of the assets of such Plan
allocable to such accrued benefits as of such valuation date and no
material adverse change in the funded status of any such Plan has occurred
since such valuation date.
(g) No Plan is a "multiemployer pension plan," as such term is
defined in Section 3(37) of ERISA, a "multiple employer welfare
arrangement," as such term is defined in Section 3(40) of ERISA, or a
single employer plan that has two or more contributing sponsors, at least
two of whom are not under common control, within the meaning of Section
4063(a) of ERISA.
(h) Each Plan that is intended to be "qualified" within the meaning
of Section 401(a) of the Code is so qualified. Each Plan that is intended
to satisfy the requirements of Section 125 or 501(c)(9) of the Code
satisfies such requirements. Each Plan has been operated and administered
in all material respects in accordance with its terms and applicable laws,
including without limitation ERISA and the Code.
(i) Except as Previously Disclosed, each Plan may be amended or
terminated without liability to Community or any ERISA Affiliate. No
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amounts payable under the Plans will fail to be deductible for federal
income tax purposes under Section 280G of the Code.
(j) There are no actions, suits or claims pending, or, to the
knowledge of the Community Entities, threatened or anticipated (other than
routine claims for benefits) against any Plan, the assets of any Plan or
against any Community Entity or any ERISA Affiliate with respect to any
Plan. There is no judgment, decree, injunction, rule or order of any
court, governmental body, commission, agency or arbitrator outstanding
against or in favor of any Plan or any fiduciary thereof (other than rules
of general applicability). There are no pending or threatened audits,
examinations or investigations by any governmental body, commission or
agency involving any Plan.
(k) Except as Previously Disclosed, neither consummation of the
Transactions nor termination of the employment or service of any employee
or director of any of the Community Entities prior to or following
consummation of the Transactions will (i) entitle any current or former
employee or director of any Community Entity to severance pay, or any
similar payment, (ii) accelerate the time of payment or vesting, or
increase the amount, of any compensation due to any such current or former
employee or director, (iii) renew or extend the term of any agreement
regarding compensation for a current or former employee or director, or
(iv) result in the Community Entities making or being required to make any
"excess parachute payment" as that term is defined in Section 280G of the
Code.
2.14. Certain Contracts
(a) Except as Previously Disclosed or as specifically identified in
the notes to the Community Financial Statements, none of the Community
Entities is a party to, or bound by, (i) any material contract, arrangement
or commitment whether or not made in the ordinary course of business
requiring the payment of more than $100,000 in any year or any agreement
restricting the nature or geographic scope of its business activities in
any material respect, (ii) any agreement, indenture or other instrument
relating to the borrowing of money by any Community Entity or the guarantee
by any Community Entity of any such obligation, other than instruments
relating to transactions entered into in the customary course of the
Community Banks' business, (iii) any written or oral agreement, arrangement
or commitment not terminable at will without liability or requiring the
payment of more than $25,000 relating to the employment of a consultant or
the employment, election, retention in office or severance of any present
or former director or officer, or (iv) any contract, agreement or
understanding with a labor union.
(b) No Community Entity is in default in any material respect under
any material agreement, commitment, arrangement, lease, insurance policy or
other instrument whether entered into in the ordinary course of business or
otherwise, and there has not occurred any event that, with the lapse of
time or giving of notice or both, would constitute such a material default.
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14
2.15. Legal Proceedings
Except for matters which, individually or in the aggregate, would not
have a Material Adverse Effect on Community, neither Community nor any of
the Community Subsidiaries is a party to any, and there are no pending or,
to the best of Community's knowledge, threatened, legal, administrative,
arbitral or other proceedings, claims, actions or governmental
investigations of any nature by or against Community or any of the
Community Subsidiaries; and neither Community nor any of the Community
Subsidiaries is a party to or subject to any order, judgment or decree. To
the knowledge of the Community Entities, there are no actual or threatened
actions, suits or proceedings which present a claim to restrain or prohibit
the Transactions or to impose any material liability in connection
therewith. There are no actions, suits or proceedings instituted, pending
or, to the knowledge of the Community Entities, threatened against any
present or former director or officer of any Community Entity, that would
be likely to give rise to a claim for indemnification and that, in the
event of an unfavorable outcome, would, individually or in the aggregate,
have a Material Adverse Effect on Community and, to the knowledge of the
Community Entities, there is no reasonable basis for any such action, suit
or proceeding.
2.16. Compliance with Laws; Regulatory Examinations; Regulatory Approvals
(a) Each Community Entity holds, and at all times since January 1,
1994 has held, all licenses, franchises, permits, approvals, consents,
qualifications and authorizations material for the lawful conduct of its
business under and pursuant to, and has complied with, and is not in
default under, and no Community Entity has any knowledge of any violation
of, any applicable law, statute, order, rule, regulation, policy,
ordinance, reporting or filing requirement and/or guideline of any federal,
state or local governmental authority relating to the Community Entities,
except as Previously Disclosed and except for failures to hold, failures to
comply, defaults or violations which, either individually or in the
aggregate, do not or would not have a Material Adverse Effect on Community.
(b) Except for normal examinations conducted by a regulatory agency
in the regular course of business of the Community Entities, no regulatory
agency has initiated any proceeding or, to the best knowledge of the
Community Entities, investigation into the business or operations of any
Community Entity since December 31, 1996. None of the Community Entities
has received any objection from any regulatory agency to any response by
any Community Entity to any violation, criticism or exception with respect
to any report or statement relating to any examinations of the Community
Entities.
(c) No Community Entity has, since January 1, 1994 received
notification from any agency or department of federal, state or local
government (i) asserting a material violation of any such statute or
regulation, (ii) threatening to revoke any license, franchise, permit or
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15
government authorization, or (iii) restricting or in any way limiting its
operations. No Community Entity is subject to any regulatory or
supervisory cease and desist order, agreement, directive, memorandum of
understanding or commitment, and none of them has received any
communication requesting that it enter into any of the foregoing.
(d) No Community Entity is aware of any reason why the conditions
set forth in Section 5.1(b) hereof would not be satisfied without
significant delay.
2.17. Labor Matters
With respect to their respective employees, the Community Entities
are not parties to any labor agreement with any labor organization, group
or association and have not engaged in any unfair labor practice as defined
under applicable federal law. Since January 1, 1996, no Community Entity
has experienced any attempt by organized labor or its representatives to
make any Community Entity conform to demands of organized labor relating to
its employees or to enter into a binding agreement with organized labor
that would cover the employees of any Community Entity. There is no unfair
labor practice charge or other complaint by any employee or former employee
of any Community Entity against it pending before any governmental agency
arising out of the activities of the Community Entities which charge or
complaint (i) has a reasonable probability of an unfavorable outcome and
(ii) in the event of an unfavorable outcome would, individually or in the
aggregate, have a Material Adverse Effect on Community; there is no labor
strike or labor disturbance pending or, to the knowledge of the Community
Entities, threatened against any Community Entity; and no Community Entity
has experienced a work stoppage or other labor difficulty since January 1,
1996.
2.18. Brokers and Finders
Neither the Community Entities nor any of their respective officers,
directors or employees, has employed any broker, finder or financial
advisor or incurred any liability for any fees or commissions in connection
with the Transactions, except that Community has engaged and will pay a fee
or commission to XxXxxxxxx, Xxxx & Xxxxxx, Inc., as Previously Disclosed.
2.19. Insurance
Community has made available to CFX true and correct copies of all
material policies of insurance of any Community Entity in effect as of the
date hereof. No Community Entity has any liability for unpaid premiums or
premium adjustments not properly reflected on Community's Financial
Statements, except for any such liability that would not have a Material
Adverse Effect on Community. Except as Previously Disclosed, no Community
Entity has received any notice of termination of any such insurance
coverage or material increase in the premiums therefor or has any reason to
believe that any such insurance coverage will be terminated or the premiums
therefor materially increased except as a result of the Transactions.
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2.20. Environmental Liability
(a) Except for any violation, liability or noncompliance which does
not have a Material Adverse Effect on Community: (i) no Community Entity
has violated during the last five years or is in violation of or is liable
under any federal, state or local environmental law; (ii) none of the
properties owned or leased by any Community Entity (including, without
limitation, soils and surface and ground waters) are contaminated with any
hazardous substance; (iii) no Community Entity is liable for any off-site
contamination; and (iv) each Community Entity is, and during the last five
years has been, in compliance with, all of its respective permits, licenses
and other authorizations issued under any environmental laws. For purposes
of the foregoing, all references to "properties" include, without
limitation, any owned real property or leased real property.
(b) No Community Entity has received any written notice of any
legal, administrative, arbitral or other proceeding, claim or action and,
to the knowledge of the Community Entities, there is no governmental
investigation of any nature ongoing, in each case that could reasonably be
expected to result in the imposition, on the Community Entities of any
liability arising under any local, state or federal environmental statute,
regulation or ordinance including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended,
which liability would have a Material Adverse Effect on Community; there
are no facts or circumstances which could reasonably be expected to form
the basis for any such proceeding, claim, action or governmental
investigation that would impose any such liability; and no Community Entity
is subject to any agreement, order, judgment, decree or memorandum by or
with any court, governmental authority, regulatory agency or third party
imposing any such liability.
2.21. Administration of Trust Accounts
Except as Previously Disclosed, neither of the Community Banks
currently administers or previously has administered any accounts for which
it acts as a fiduciary or agent, including without limitation accounts for
which it serves as a trustee, agent, custodian, personal representative,
guardian, conservator or investment advisor other than XXX accounts.
2.22. Intellectual Property
The Community Entities own the entire right, title and interest in
and to, or have valid licenses with respect to, all the Intellectual
Property necessary in all material respects to conduct their business and
operations as presently conducted, except where the failure to do so would
not, individually or in the aggregate, have a Material Adverse Effect on
Community. None of such Intellectual Property is subject to any
outstanding order, decree, judgment, stipulation, settlement, lien, charge,
encumbrance or attachment, which order, decree, judgment, stipulation,
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xxxxxxxxxx, xxxx, charge, encumbrance or attachment would have a Material
Adverse Effect on Community.
2.23. Certain Information
As of the effectiveness of the Registration Statement or any post-
effective amendment thereto and as of the date of the Community
shareholders' meeting to vote upon the Transactions, as of the mailing of
any Proxy Statement or any amendment thereto and as of the date of the
Community shareholders' meeting to vote upon the Transactions, such
Registration Statement or Proxy Statement and all amendments or supplements
thereto, with respect to all information set forth therein furnished by
Community relating to Community shall (i) comply in all material respects
with the applicable provisions of the Securities Laws, and (ii) 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 not misleading.
2.24. Pooling of Interests
The Community Entities know of no reason which would reasonably cause
any of them to believe that the Transactions will not qualify as a pooling
of interests for financial accounting purposes.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF CFX AND CFX BANK
CFX and CFX Bank hereby represent and warrant to Community and the
Community Banks that, except as Previously Disclosed:
3.1. Capital Structure of CFX
(a) The authorized capital stock of CFX consists solely of
22,500,000 shares of common stock, par value $0.66 2/3 per share ("CFX
Common Stock"), and 3,000,000 shares of preferred stock, par value $1.00
per share ("CFX Preferred Stock"). As of December 31, 1996, there were
13,008,787 shares of CFX Common Stock issued and outstanding, 28,000 shares
of CFX Common Stock held in its treasury, no shares of CFX Preferred Stock
issued and outstanding, and no shares of CFX Preferred Stock held in its
treasury. All outstanding shares of CFX's capital stock have been duly
issued and are validly outstanding, fully paid and nonassessable. None of
the shares of CFX's capital stock has been issued in violation of the
preemptive rights of any person. The shares of CFX Common Stock to be
issued in connection with the Share Exchange will have been duly authorized
upon adoption of an amendment to CFX's Articles of Incorporation
authorizing additional shares of CFX Common Stock (a "Charter Amendment"),
and, when issued in accordance with the terms of the Transaction Documents,
will be validly issued, fully paid, nonassessable and free and clear of any
preemptive rights.
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18
(b) As of December 31, 1996, CFX's Tier 1 risk-based capital ratio,
total risk-based capital ratio, and leverage ratio, each calculated in
accordance with the capital guidelines of the Federal Reserve applicable to
bank holding companies on a fully phased-in basis, were each in excess of
the specified minimum levels for qualification as "well capitalized."
(c) As of the date hereof, except for shares of CFX Common Stock
subject to options under CFX's employee stock option and incentive plans,
and except for shares to be issued pursuant to that certain Agreement and
Plan of Reorganization, dated as of February 13, 1997, by and among CFX,
CFX Bank, Portsmouth Bank Shares, Inc. and Portsmouth Savings Bank, CFX is
not bound by any outstanding Rights. There are no agreements or
understandings to which CFX is a party with respect to the voting of any
shares of CFX Common Stock or which restrict the transfer of such shares.
3.2. Organization, Standing and Authority of CFX
CFX is a duly organized corporation, validly existing and in good
standing under the laws of New Hampshire, with full corporate power and
authority to carry on its business as now conducted and is duly licensed or
qualified to do business in the states of the United States and foreign
jurisdictions where its ownership or leasing of property or the conduct of
its business requires such qualification, except where the failure to be so
licensed or qualified would not have a Material Adverse Effect on CFX. CFX
is registered as a bank holding company under the BHC Act. CFX has made
available to Community true and correct copies of its charter and bylaws.
3.3. Ownership and Capital Structure of CFX's Subsidiaries
Except as Previously Disclosed, CFX does not own, directly or
indirectly, 25 percent or more of the outstanding capital stock or other
voting securities of any corporation, bank or other organization (each a
"CFX Subsidiary" and collectively the "CFX Subsidiaries"). The outstanding
shares of capital stock or other equity interests of the CFX Subsidiaries
are validly issued and outstanding, fully paid and nonassessable and,
except with respect to CFX Funding L.L.C. in which CFX owns 51% of the
equity interests, all such shares or interests are directly or indirectly
owned by CFX free and clear of all liens, claims and encumbrances. No CFX
Subsidiary has or is bound by any Rights which are authorized, issued or
outstanding with respect to the capital stock or other equity interests of
any CFX Subsidiary, and there are no agreements, understandings or
commitments relating to the right of CFX to vote or to dispose of said
shares or interests. None of the shares of capital stock or other equity
interests of any CFX Subsidiary has been issued in violation of the
preemptive rights of any person.
3.4. Organization, Standing and Authority of CFX Subsidiaries
Each CFX Subsidiary is a duly organized corporation or banking
association, validly existing and in good standing under applicable laws.
Each CFX Subsidiary (i) has full power and authority to carry on its
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19
business as now conducted, and (ii) is duly licensed or qualified to do
business in the states of the United States and foreign jurisdictions where
its ownership or leasing of property or the conduct of its business
requires such licensing or qualification and where failure to be licensed
or qualified would have a Material Adverse Effect on CFX. Each CFX
Subsidiary has all federal, state, local and foreign governmental
authorizations necessary for it to own or lease its properties and assets
and to carry on its business as it is now being conducted, except where the
failure to be so authorized would not have a Material Adverse Effect on
CFX.
3.5. Authorized and Effective Agreement
(a) Subject to adoption of a Charter Amendment, CFX has all
requisite corporate power and authority to enter into and perform all of
its obligations under the Transaction Documents to which CFX is a party.
The adoption, execution and delivery of the Transaction Documents to which
CFX is a party and the consummation of the Transactions contemplated
thereby have been duly and validly authorized by all necessary corporate
action in respect thereof on the part of CFX, except that a Charter
Amendment must be approved by the affirmative vote of the holders of at
least two thirds of all of the shares of CFX entitled to vote for the
election of directors in accordance with the Articles of Incorporation of
CFX and the issuance of CFX Common Stock pursuant to the Transaction
Documents must be approved by the affirmative vote of the holders of a
majority of the votes cast by the holders of CFX Common Stock eligible to
vote thereon in accordance with AMEX policy. The Board of Directors of CFX
has directed that a Charter Amendment, the Transaction Documents and the
Transactions be submitted to CFX's stockholders for approval at an annual
or special meeting to be held as soon as practicable.
(b) CFX Bank has all requisite corporate power and authority to
enter into and perform all of its obligations under the Transaction
Documents to which CFX Bank is a party. The execution and delivery of this
Reorganization Agreement and the Plan of Merger and the consummation of the
Transactions contemplated thereby have been duly and validly authorized by
all necessary corporate action in respect thereof on the part of CFX Bank.
(c) Assuming the accuracy of the representations contained in
Sections 2.5(c) hereof, the Transaction Documents constitute legal, valid
and binding obligations of CFX and CFX Bank, in each case enforceable
against them in accordance with their respective terms subject, as to
enforceability, to bankruptcy, insolvency and other laws of general
applicability relating to or affecting creditors' rights and to general
principles of equity.
(d) Except as Previously Disclosed and subject to adoption of a
Charter Amendment, neither the adoption, execution and delivery of the
Transaction Documents nor the consummation of the Transactions nor
compliance by the CFX Entities with any of the provisions hereof or thereof
shall (i) conflict with or result in a breach of any provision of the
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20
articles or certificates of incorporation or association, charters or by-
laws of the CFX Entities, (ii) constitute or result in a breach of any
term, condition or provision of, or constitute a default under, or give
rise to any right of termination, cancellation or acceleration with respect
to, or result in the creation of any lien, charge or encumbrance upon any
property or asset of the CFX Entities pursuant to, any note, bond,
mortgage, indenture, license, agreement or other instrument or obligation,
or (iii) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to the CFX Entities, except for such violations,
rights, conflicts, breaches, creations or defaults which, either
individually or in the aggregate, will not have a Material Adverse Effect
on CFX.
(e) Except for the approvals specified in Sections 4.2 and 4.4
hereof, except as Previously Disclosed and except as expressly referred to
in this Reorganization Agreement, no consent, approval or authorization of,
or declaration, notice, filing or registration with, any governmental or
regulatory authority, or any other person, is required to be made or
obtained by the CFX Entities on or prior to the Closing Date in connection
with the execution, delivery and performance of the Transaction Documents
or the consummation of the Transactions other than the filing of
certificates or articles of merger or share exchange or similar documents
with the appropriate New Hampshire state authorities.
3.6. SEC Documents; Regulatory Filings
CFX has filed all SEC Documents required by the Securities Laws and
such SEC Documents complied, as of their respective dates, in all material
respects with the Securities Laws. As of their respective dates, no such
SEC Documents filed with the SEC contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances in which they were made, not misleading, except that
information filed as of a later date shall be deemed to modify information
as of an earlier date. CFX and each of the CFX Subsidiaries has filed all
reports required by statute or regulation to be filed with any federal or
state bank regulatory agency, and such reports were prepared in accordance
with the applicable statutes, regulations and instructions in existence as
of the date of filing of such reports in all material respects.
3.7. Financial Statements
The CFX Financial Statements fairly present or when filed will fairly
present the consolidated financial position of CFX and the consolidated CFX
Subsidiaries as of the dates indicated and the consolidated results of
operations, changes in shareholders' equity and cash flows of CFX and the
consolidated CFX Subsidiaries for the periods then ended in conformity with
generally accepted accounting principles applicable to banking
organizations or financial institutions applied on a consistent basis
except as disclosed therein. The books and records of CFX fairly reflect
in all material respects the transactions to which it is a party or by
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21
which its properties are subject or bound. Such books and records have
been properly kept and maintained and are in compliance in all material
respects with all applicable legal and accounting requirements. The minute
books of the CFX Entities contain records which are accurate in all
material respects of all corporate actions of their respective shareholders
and Boards of Directors (including committees of their respective Boards of
Directors).
3.8. Material Adverse Change
CFX has not, on a consolidated basis, suffered any material adverse
change in its financial condition, results of operations or business since
December 31, 1996.
3.9. Absence of Undisclosed Liabilities
Neither CFX nor any CFX Subsidiary has any liability (contingent or
otherwise) that is material to CFX on a consolidated basis, or that, when
combined with all similar liabilities, would be material to CFX on a
consolidated basis, except as Previously Disclosed, as disclosed in the CFX
Financial Statements filed with the SEC prior to the date hereof and except
for liabilities incurred in the ordinary course of business subsequent to
December 31, 1996.
3.10. Brokers and Finders
Neither the CFX Entities nor any of their respective officers,
directors or employees, has employed any broker, finder or financial
advisor or incurred any liability for any fees or commissions in connection
with the Transactions, except that CFX has engaged and will pay a fee or
commission to Alex. Xxxxx & Sons Incorporated.
3.11. Legal Proceedings
Except for matters which, individually or in the aggregate, would not
have a Material Adverse Effect on CFX, neither CFX nor any of the CFX
Subsidiaries is a party to any, and there are no pending or, to the best of
CFX's knowledge, threatened, legal, administrative, arbitral or other
proceedings, claims, actions or governmental investigations of any nature
by or against CFX or any of the CFX Subsidiaries; and neither CFX nor any
of the CFX Subsidiaries is a party to or subject to any order, judgment or
decree. To the knowledge of the CFX Entities, there are no actual or
threatened actions, suits or proceedings which present a claim to restrain
or prohibit the Transactions or to impose any material liability in
connection therewith.
3.12. Compliance with Laws; Regulatory Examinations; Regulatory Approvals
(a) CFX and each of the CFX Subsidiaries holds, and has at all times
held, all licenses, franchises, permits, approvals, consents,
qualifications and authorizations material for the lawful conduct of its
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22
business under and pursuant to, and has complied with, and is not in
default under, any applicable law, statute, order, rule, regulation,
policy, ordinance, reporting or filing requirement and/or guideline of any
federal, state or local governmental authority relating to CFX or any of
the CFX Subsidiaries, except for violations which, either individually or
in the aggregate, do not or would not have a Material Adverse Effect on
CFX, and neither CFX or any of the CFX Subsidiaries has knowledge of any
violation of any of the above.
(b) Except for normal examinations conducted by a regulatory agency
in the regular course of the business of CFX and the CFX Subsidiaries, no
regulatory agency has initiated any proceeding or, to the best knowledge of
CFX, investigation into the business or operations of CFX or any of the CFX
Subsidiaries since September 30, 1996. None of the CFX Entities has
received any objection from any regulatory agency to any response to any
violation, criticism or exception with respect to any report or statement
relating to any examinations of CFX or any of the CFX Subsidiaries.
(c) No CFX Entity has received notification from any agency or
department of federal, state or local government (i) asserting a material
violation of any such statute or regulation, (ii) threatening to revoke any
license, franchise, permit or government authorization, or
(iii) restricting or in any way limiting its operations. No CFX Entity is
subject to any regulatory or supervisory cease and desist order, agreement,
directive, memorandum of understanding or commitment, and none of them has
received any communication requesting that it enter into any of the
foregoing.
(d) No CFX Entity is aware of any reason why the conditions set
forth in Section 5.1(b) hereof would not be satisfied without significant
delay.
3.13. Certain Information
At all times subsequent to the effectiveness of the Registration
Statement or any post-effective amendment thereto and up to and including
the time of the CFX shareholders' meeting to vote upon the Transactions,
and at all times subsequent to the mailing of any Proxy Statement or any
amendment thereto and up to and including the time of the CFX shareholders'
meeting to vote upon the Transactions, such Registration Statement or Proxy
Statement and all amendments or supplements thereto, with respect to all
information set forth therein furnished by CFX relating to the CFX Entities
shall (i) comply in all material respects with the applicable provisions of
the Securities Laws, and (ii) 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 not
misleading.
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23
3.14. Pooling of Interests
The CFX Entities know of no reason which would reasonably cause
either of them to believe that the Transactions will not qualify as a pool-
ing of interests for financial accounting purposes.
3.15 Employee Benefits
CFX has Previously Disclosed a list of all benefit plans and programs
made available by CFX to officers and employees of the CFX Entities. True
and correct copies of all such plans and of all documents related to such
programs have been made available to Community.
ARTICLE 4.
COVENANTS
4.1. Shareholders' Meeting
CFX and Community shall submit the Transaction Documents and, in the
case of CFX, adoption of a Charter Amendment and the issuance of CFX Common
Stock thereunder, to their respective shareholders for approval at annual
or special meetings to be held as soon as practicable after the date
hereof. Subject to the fiduciary duties of the respective boards of
directors of Community and CFX as determined by each after consultation
with counsel, the boards of directors of CFX and Community shall recommend
at the respective shareholders' meetings that the shareholders vote in
favor of such approvals. Nothing contained in this Section 4.1 shall
prohibit either CFX or Community from taking and disclosing to its
stockholders a position with respect to a tender offer by a third party
pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act or
making such other disclosure to its stockholders which, in the judgment of
its Board, based upon the advice of outside counsel, may be required under
applicable law, or making disclosure to its stockholders of the absence of
an opinion from Community's investment advisor dated the date of the Proxy
Statement as to the fairness of the consideration to be paid to Community's
stockholders in connection with the Share Exchange.
4.2. Proxy Statement; Registration Statement
As promptly as practicable after the date hereof, CFX and Community
shall cooperate in the preparation of the Proxy Statements to be mailed to
the shareholders of Community and CFX in connection with the Transactions
and, if required, to be filed by CFX as part of the Registration Statement.
In the event that the issuance of CFX Common Stock in connection with the
Share Exchange is exempt from registration under Section 3(a)(10) of the
Securities Act and the SEC's regulations and interpretations thereunder and
shares received will not be considered "restricted securities" for purposes
of Rule 144 under the Securities Act, no Registration Statement will be
filed. CFX will advise Community, promptly after it receives notice
thereof, of the time when the Registration Statement or any post-effective
amendment thereto has become effective or any supplement or amendment has
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24
been filed, of the issuance of any stop order, of the suspension of
qualification of the CFX Common Stock issuable in connection with the Share
Exchange for offering or sale in any jurisdiction, or the initiation or
threat of any proceeding for any such purpose, or of any request by the SEC
for the amendment or supplement of the Registration Statement or for
additional information. CFX, after the Effective Date shall file a post-
effective amendment to the Registration Statement or shall file a
registration statement, as appropriate, either with respect to the sale of
the shares of CFX Common Stock provided for in Article III of the Plan of
Exchange to the holders of stock options issued by Community or for the
resale of such shares by such optionees, as CFX and such optionees may
agree. CFX shall take all actions necessary to register or qualify the
shares of CFX Common Stock to be issued in the Share Exchange pursuant to
all applicable state "blue sky" or securities laws and shall maintain such
registrations or qualifications in effect for all purposes hereof. CFX
shall apply for approval to list the shares of CFX Common Stock to be
issued in the Share Exchange on the AMEX, subject to official notice of
issuance, prior to the Effective Date.
4.3. Applications
As promptly as practicable after the date hereof, the Parties shall
take all action necessary or desirable to obtain any required regulatory
approval for the Transactions. Without limiting the generality of the
foregoing sentence, CFX or CFX Bank shall (i) file a request with the
Federal Reserve for a waiver of the application and prior approval
requirements of Section 3 of the BHC Act with respect to the Share Exchange
and the Holding Company Merger, (ii) file an application with the FDIC for
prior approval of the Bank Merger under the Bank Merger Act and the
regulations promulgated thereunder, and (iii) file a notice with the
Commissioner with respect to the Bank Merger pursuant to Chapter 388 or
other applicable section of the New Hampshire Revised Statutes Annotated
and the regulations promulgated thereunder. Each of the Parties shall, and
they shall cause their respective subsidiaries to, submit any applications,
notices, requests or other filings to any other state or federal government
agency, department or body the approval of which is required for
consummation of the Transactions. Community and CFX each represents and
warrants to the other that all information concerning it and its directors,
officers, shareholders and subsidiaries included (or submitted for
inclusion) in any such application, notice, request or other filing and
furnished by it shall be true, correct and complete in all material
respects.
4.4. Best Efforts; Certain Notices and Information
(a) The Parties shall each use their reasonable best efforts in
good faith to (a) furnish such information as may be required in connection
with the preparation of the documents referred to in Sections 4.2 and 4.3
above, and (b) take or cause to be taken all action necessary or desirable
on its part so as to permit consummation of the Transactions at the
earliest possible date, including, without limitation, (i) obtaining the
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consent or approval of each individual, partnership, corporation,
association or other business or professional entity whose consent or
approval is required for consummation of the Transactions, provided that no
Community Entity shall agree to make any payments or modifications to
agreements in connection therewith without the prior written consent of
CFX, and (ii) requesting the delivery of appropriate opinions, consents and
letters from its counsel and independent auditors. No Party shall take or
fail to take, or cause or permit its subsidiaries to take or fail to take,
or to the best of its ability permit to be taken or omitted to be taken by
any third persons, any action that would substantially impair the prospects
of completing the Transactions pursuant to the Transaction Documents, or
that would adversely affect the qualification of the Transactions for
pooling of interests accounting treatment or as a reorganization within the
meaning of Section 368(a) of the Code; provided that nothing herein
contained shall preclude CFX from exercising its rights under the Stock
Option Agreement. In the event that any Party has taken any action,
whether before, on or after the date hereof, that would adversely affect
such qualification, each Party shall take such action as any other Party
may reasonably request to cure such effect to the extent curable without a
Material Adverse Effect on any of the Parties.
(b) Community shall give prompt notice to CFX, and CFX shall give
prompt notice to Community, of (i) the occurrence, or failure to occur, of
any event which occurrence or failure would be likely to cause any
representation or warranty contained in this Reorganization Agreement to be
untrue or inaccurate in any material respect at the date hereof or on the
Closing Date (if so required under Section 5.2(a) or Section 5.3(a)
hereof), and (ii) any material failure of Community or CFX, as the case may
be, to comply with or satisfy any covenant, condition or agreement to be
complied with or satisfied by it hereunder, and each Party shall use all
reasonable efforts to remedy such failure.
(c) Community shall provide and shall request its auditors to
provide CFX with such historical financial information regarding it (and
related audit reports and consents) as CFX may reasonably request for
securities disclosure purposes.
4.5. Investigation and Confidentiality
Community and CFX each will keep the other advised of all material
developments relevant to its business or to consummation of the
Transactions, material transactions outside of its ordinary course of
business, and material changes in the normal course of its business or in
the operation of its properties. The Parties each may make or cause to be
made such investigation of the financial and legal condition of the other
Parties as such Party reasonably deems necessary or advisable in connection
with the Transactions; provided, however, that such investigation shall be
reasonably related to such Transactions and shall not interfere
unnecessarily with normal operations. Each Party agrees to furnish the
other Parties and the other Parties' advisors with such financial data and
other information with respect to its business and properties as such other
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Parties shall from time to time reasonably request. No investigation
pursuant to this Section 4.5 shall affect or be deemed to modify any
representation or warranty made by, or the conditions to the obligations to
consummate the Transactions of, any Party. Each Party shall hold all
information furnished by the other Parties or any of such Party's
subsidiaries or representatives pursuant hereto in confidence to the extent
required by, and in accordance with, the provisions of the confidentiality
agreement dated February, 1997 by and between Community and CFX (the
"Confidentiality Agreement").
4.6. Press Releases
Community and CFX shall agree with each other as to the form and
substance of any press release related to the Transactions, and shall
consult each other as to the form and substance of other public disclosures
related thereto; provided, however, that nothing contained herein shall
prohibit any Party, following notification to the other Parties, from
making any disclosure which its counsel deems necessary.
4.7. Covenants of the Community Entities
(a) Prior to the Closing Date, and except as otherwise provided for
by the Transaction Documents or consented to or approved by CFX, the
Community Entities shall, and shall cause each of their respective
subsidiaries to, use their respective reasonable best efforts to preserve
their respective properties, business and relationships with customers,
employees and other persons.
(b) Except with the prior written consent of CFX or except as
Previously Disclosed or except as expressly contemplated or permitted by
the Transaction Documents, no Community Entity shall, and no Community
Entity shall permit any of its subsidiaries to:
(1) carry on its business other than in the usual, regular
and ordinary course in substantially the same manner as heretofore
conducted;
(2) with respect to Community only, declare, set aside, make
or pay any dividend or other distribution in respect of its capital stock
other than its regular cash dividends on Community Common Stock in amounts
not in excess of $.16 per share and in a manner consistent with past
practice and in accordance with applicable law, regulation and contractual
and regulatory commitments, provided that Community's cash dividends may be
increased to the Increased Dividend (as defined below) per share of
Community Common Stock beginning with the dividend payable in the first
quarter of 1998, and provided further that the parties agree (x) to consult
with respect to the amount of the last Community quarterly dividend payable
prior to the Effective Date with the objective of assuring that the
shareholders of Community do not receive a shortfall or dividend or
distribution from both Community and CFX for such quarter based on the
record and payment dates of their last dividend prior to the Holding
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Company Merger and the record and payment dates of the first dividend of
CFX following the Holding Company Merger and (y) that Community may pay a
dividend to holders of record of Community Common Stock immediately prior
to Effective Date consistent with the objective described in clause (x)
above. The "Increased Dividend" shall be determined by multiplying the
quarterly dividend then being paid by CFX with respect to each share of CFX
Common Stock by 2.2;
(3) issue any shares of its capital stock or permit any
treasury shares to become outstanding other than pursuant to the Stock
Option Agreement or Rights outstanding at the date hereof;
(4) incur any additional obligation for borrowed money other
than in the ordinary course of business consistent with past practice;
(5) issue, grant or authorize any Rights or effect any
recapitalization, reclassification, stock dividend, stock split or like
change in capitalization, or redeem, repurchase or otherwise acquire any
shares of its capital stock;
(6) amend its articles or certificate of incorporation or
association, charter or by-laws;
(7) merge with any other corporation, savings association or
bank or permit any other corporation, savings association or bank to merge
into it or consolidate with any other corporation, savings association or
bank; acquire control over any other firm, bank, corporation, savings
association or organization or create any subsidiary;
(8) except in the ordinary course of business consistent with
past practice, waive or release any material right or cancel or compromise
any material debt or claim;
(9) except in connection with the hedging of interest rate
risk related to Community's 1-4 family residential mortgage loan pipeline,
enter into any material swap, hedge or other similar off-balance sheet
transaction;
(10) except as Previously Disclosed, except for foreclosing on
collateral and except for sales of 1-4 family residential mortgage loans,
automobile loans and Small Business Administration loans in the ordinary
course of business consistent with past practice, liquidate or sell or
dispose of any material assets or acquire any material assets; except as
Previously Disclosed, make any capital expenditure in excess of $100,000 in
any instance or $250,000 in the aggregate; or, except as Previously
Disclosed, establish new branches or other similar facilities or enter into
or modify any leases or other contracts relating thereto that involve
annual payments that exceed $25,000 in any instance or $100,000 in the
aggregate;
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(11) except as Previously Disclosed, increase the rate of
compensation of, pay or agree to pay any bonus to, or provide any other
employee benefit or incentive to, any of its directors, officers or
employees except in a manner consistent with past practice;
(12) enter into, modify or extend any employment or severance
contracts with any of its present or former directors, officers or
employees;
(13) enter into or substantially modify (except as may be
required by applicable law) any pension, retirement, stock option, stock
purchase, stock appreciation right, savings, profit sharing, deferred
compensation, consulting, bonus, group insurance or other employee benefit,
incentive or welfare contract, plan or arrangement, or any trust agreement
related thereto, in respect of any of its directors, officers or other
employees;
(14) change its lending, investment, asset/liability
management or other material banking policies in any material respect
except as may be required by changes in applicable law or regulations;
(15) change its methods of accounting in effect at
December 31, 1995, except as required by changes in generally accepted
accounting principles or regulatory requirements concurred in by its
independent certified public accountants, or change any of its methods of
reporting income and deductions for federal income tax purposes from those
employed in the preparation of its federal income tax returns for the year
ended December 31, 1995, except as required by law;
(16) solicit or initiate inquiries or proposals with respect
to any acquisition or purchase of all or a substantial portion of the
assets of, or a substantial equity interest in, any Community Entity or any
business combination with any Community Entity other than as contemplated
by this Reorganization Agreement; or authorize or permit any officer,
director, agent or affiliate of it to do any of the above; or fail to
notify CFX as soon as practicable if any such inquiries or proposals are
received by any Community Entity, or if any Community Entity or any
officer, director, agent or affiliate thereof is requested to or does
furnish any confidential information relating to, or participates in any
negotiations or discussions concerning, any transaction of a type describe
in this paragraph; or
(17) agree to do any of the foregoing.
(c) Each of the Community Entities agrees to approve, execute and
deliver any amendment to the Transaction Documents and any additional plans
and agreements requested by CFX to modify the structure of, or to
substitute parties to, the Transactions; provided, however, that no such
change shall (i) alter or change the amount or kind of consideration to be
delivered to the shareholders of Community in connection with the Share
Exchange, (ii) adversely affect the tax treatment to the shareholders of
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Community as a result of receiving such consideration in the Share
Exchange, or (iii) materially impede or delay receipt of any approval
referred to in Section 4.1 or 4.3 hereof or the consummation of the
Transactions.
(d) CFX, CFX Bank, Community and Concord Bank all acknowledge that
this Reorganization Agreement is binding upon them as of the date hereof.
Community hereby covenants that it shall cause the board of directors of
Centerpoint Bank to approve this Reorganization Agreement and the Plan of
Merger and shall cause Centerpoint Bank to execute this Reorganization
Agreement and the Plan of Merger as soon as practicable, but in no event
later than 10 days after the date hereof. Pending such approval and
execution, the representations and warranties contained in Article 2 hereof
shall be construed on the basis that such approval and execution have yet
to occur.
(e) Community undertakes and agrees that, if so requested by CFX,
it shall take all necessary action to facilitate the liquidation of
Community Subsidiaries or the merger of Community Subsidiaries with
subsidiaries of CFX effective on or after the Effective Date; provided
however, that in no event shall the Closing be delayed in order to
facilitate any such liquidation or merger and provided further, however,
that Community shall not be required to take any action that could
adversely affect the qualification of the Share Exchange as a
reorganization within the meaning of Section 368(a) of the Code.
(f) Immediately prior to the Closing, the CFX Entities and the
Community Entities will supplement or amend their prior disclosures
pursuant to this Reorganization Agreement, including without limitation all
Previously Disclosed documents and information, with respect to any matter
hereafter arising which, at the Closing Date, would be required to be
Previously Disclosed to the CFX Entities or the Community Entities, as
appropriate, if this Reorganization Agreement were dated as of the Closing
Date, or which is necessary to correct any Previously Disclosed document or
information which was inaccurate at the time it was made. No such
supplement or amendment shall have any effect for the purpose of
determining satisfaction of the conditions set forth in Article 5 hereof or
the compliance by any of the Community Entities with the covenants set
forth in this Section 4.7.
4.8. Closing; Effective Date
The Transactions shall be consummated at a closing (the "Closing") to
be held at the offices of CFX, 000 Xxxx Xxxxxx, Xxxxx, Xxx Xxxxxxxxx, as
soon as practicable after the date on which the last of all required
approvals for the Transactions has been obtained and the last of all
required waiting periods under such approvals has expired (the "Earliest
Possible Date") but not later than 10:00 a.m. on (x) the first business day
following the last business day of the month containing the Earliest
Possible Date or, (y) if the Earliest Possible Date occurs after the 20th
day of a month, then the first business day following the last business day
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of the following month, or at such other place, date and time as the
Parties may mutually agree upon (the "Closing Date"), with the Transactions
to be consummated in such order and after such intermediate steps as CFX
may specify; provided, however, that the order and any intermediate steps
shall not (i) alter or change the amount or kind of consideration to be
delivered to the shareholders of Community in connection with the Share
Exchange, (ii) adversely affect the tax treatment to the shareholders of
Community as a result of receiving such consideration in the Share
Exchange, or (iii) materially impede or delay receipt of any approval
referred to in Section 4.1 or 4.3 hereof or the consummation of the
Transactions. In the event that the Closing occurs on a date determined
under clause (y) of the preceding sentence and if such determination
results in the passage of an additional calendar quarter prior to the
publication of the financial information contemplated by Section 4.9(b)
hereof, then CFX shall use its reasonable best efforts to publish no later
than 25 days after the end of the first calendar month in which there are
at least 30 days of combined operations following the consummation of the
Transactions (which calendar month may be the calendar month in which the
Effective Date occurs), combined sales and net income figures as
contemplated by and in accordance with the terms of SEC Accounting Series
Release No. 135. The Transactions shall be effective at the times and on
the dates specified in the certificates or articles of merger or share
exchange to be filed with the appropriate New Hampshire state authorities
as contemplated by the Transaction Documents. For purposes of this
Reorganization Agreement, the term "Effective Date" shall mean the
effective time and date of the Share Exchange specified in the articles of
share exchange to be filed with the appropriate New Hampshire state
authorities as contemplated by the Plan of Exchange.
4.9. Affiliates
(a) The Parties shall cooperate and use their reasonable efforts to
identify those persons who may be deemed to be "affiliates" of CFX and
Community within the meaning of Rule 145 promulgated by the SEC under the
Securities Act and for purposes of qualifying the Share Exchange for
"pooling of interests" accounting treatment. Each of Community and CFX
shall use its reasonable best efforts to cause each person so identified to
deliver, no later than 30 days prior to the Effective Date, a written
agreement providing that such person will not dispose of any CFX Common
Stock received in the Share Exchange except in compliance with the
Securities Act, the rules and regulations promulgated thereunder and the
SEC's rules relating to pooling of interests accounting treatment. Shares
of CFX Common Stock issued to such affiliates in exchange for Community
Common Stock shall not be transferable until such time as financial results
covering at least 30 days of combined operations of CFX and Community have
been published within the meaning of Section 201.01 of the SEC's
Codification of Financial Reporting Policies, regardless of whether each
such affiliate has provided the written agreement referred to in this
section.
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(b) CFX shall use its reasonable best efforts to publish no later
than 25 days after the end of the first calendar quarter in which there are
at least 30 days of combined operations following consummation of the
Transactions (which calendar quarter may be the calendar quarter in which
the Effective Date occurs), combined sales and net income figures as
contemplated by and in accordance with the terms of SEC Accounting Series
Release No. 135.
4.10. Community Employees; Directors and Management
(a) All employees of the Community Entities as of the Effective
Date (the "Continuing Employees") shall become employees of one or more of
the CFX Entities, as determined by CFX, as of the Effective Date. Nothing
in the Transaction Documents shall give any Continuing Employee a right to
continued employment with the CFX Entities after the Effective Date. As
soon as practicable after the Effective Date, CFX shall provide or cause to
be provided to all Continuing Employees who remain employed by the CFX
Entities after the Effective Date with employee benefits which, in the
aggregate, are at least substantially equivalent to those generally
afforded to other employees of the CFX Entities holding similar positions,
subject to the terms and conditions under which those employee benefits are
made available to such employees (the "CFX Benefits"); provided that (1)
for purposes of determining eligibility for and vesting of the CFX Benefits
only (and not for pension benefit accrual purposes), service with Community
prior to the Effective Date shall be treated as service with an "employer"
to the same extent as if such Continuing Employees had been employees of
the CFX Entities; (2) for a one-year period after the Effective Date, CFX
shall not be required to provide the CFX Benefits to the Continuing
Employees who continue to be employed by the CFX Entities to the extent
that the Continuing Employees continue to be covered under one or more of
the Plans; (3) this Section 4.10(a) shall not be construed to limit the
ability of the CFX Entities to terminate the employment of any employee or
to review employee benefits programs from time to time and to make such
changes of general applicability to all CFX employees as they deem
appropriate; and (4) CFX will provide Continuing Employees with severance
benefits in accordance with Community's Previously Disclosed Severance
Policy for a period of 12 months following the Effective Date.
(b) Effective upon the Effective Date, Xx. Xxxxxxx Xxxxxxxxxx, the
President and Chief Executive Officer of Community and Concord, shall
become an Executive Vice President of CFX and the President and Chief
Executive Officer of CFX Bank and shall be offered a 3-year employment
agreement with CFX on terms substantially equivalent to those contracts of
other Executive Vice Presidents, but which agreement shall be no less
favorable in the aggregate than the current employment agreement between
CFX and its the President and Chief Executive Officer.
(c) Prior to or at the Effective Date, three directors of Community
to be designated by Community (one of whom shall be Xx. Xxxxxxxxxx), after
consultation with and the consent of CFX (which consent shall not be
unreasonably withheld), shall be elected to the Board of Directors of CFX
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effective upon the Effective Date, shall be divided evenly among the
classes, and shall be nominated for re-election, if at all, pursuant to
CFX's then existing policies and procedures.
(d) Prior to or at the Effective Date, three directors of Community
to be designated by Community (one of whom shall be Xx. Xxxxxxxxxx), after
consultation with and the consent of CFX and CFX Bank (which consent shall
not be unreasonably withheld), shall be elected to the Board of Trustees of
CFX Bank effective upon the Effective Date and shall be nominated for re-
election, if at all, pursuant to CFX Bank's then existing policies and
procedures.
(e) From and after the Effective Date, the appropriate CFX Entity
shall assume and honor in accordance with their terms all employment
agreements (including change in control agreements and supplemental
retirement plans) Previously Disclosed by Community. CFX agrees that the
consummation of the Transactions constitutes a "change in control" as
defined in such agreements. This paragraph is intended for the irrevocable
benefit of, and shall be enforceable by, the parties to the agreements.
(f) From and after the Effective Date, CFX shall indemnify persons
who served as directors and officers of Community and the Community Banks
on or before the Effective Date ("Indemnified Parties") in accordance with
and subject to the provisions of Community's Articles of Incorporation
Previously Disclosed to CFX (without regard to any limitation contained in
New Hampshire law, in the By-laws of Community or the By-laws or Articles
of the Community Banks). CFX intends the indemnification provided in the
preceding sentence to be a binding obligation upon it for the irrevocable
benefit of, and enforceable by, those directors and officers so
indemnified. Any Indemnified Party wishing to claim indemnification under
this Section 4.10(f), upon learning of any claim, action, suit, proceeding
or investigation for which indemnification is to be sought, shall promptly
notify CFX thereof; provided, that the failure to so notify shall not
affect the obligations of CFX under this Section 4.10(f), (unless such
failure materially increases CFX's liability here under). In the event of
any such claim, action, suit, proceeding or investigation (whether arising
before or after the Effective Date), (1) CFX shall have the right to assume
the defense thereof, if it so elects, and CFX shall pay all reasonable fees
and expenses of counsel for the indemnified Parties promptly as statements
therefor are received; provided however, that CFX shall be obligated
pursuant to this Section 4.10(f) to pay for only one firm of counsel for
all Indemnified Parties in any jurisdiction for any single action, suit or
proceeding or any group of actions, suits or proceedings arising out of or
related to a common body of facts, (2) the Indemnified Parties will
cooperate in the defense of any such matter, and (3) CFX shall not be
liable for any settlement effected without its prior written consent. From
and after the Effective Date, CFX will cause the persons who served as
directors or officers of Community and the Community Banks on or before the
Effective Date to be covered by Community's existing directors' and
officers' liability insurance policy (or policies of at least the same
coverage and amounts and containing terms and conditions which are not less
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33
advantageous than such policy); provided that no such person shall be
entitled to insurance coverage more favorable than that provided to the
person in such capacity at the date hereof with respect to acts or
omissions resulting from the person's service as such on or prior to the
Effective Date, and provided further that CFX shall not be required to
expend with respect to any year of coverage more than 150 percent of the
current per annum amount expended by Community to maintain or procure
insurance coverage pursuant hereto. Such insurance coverage shall commence
on the Effective Date and will be provided for a period of no less than six
years after the Effective Date. As a condition to receiving
indemnification under this Section 4.10(f), the party claiming
indemnification shall assign, by separate writing, to CFX all right, title
and interest to and in proceeds of any insurance maintained or provided by
Community or CFX or any of their respective affiliates for the benefits of
the claiming party, to the extent of indemnification actually received from
CFX hereunder and shall send such notices as CFX may reasonably request
under any applicable directors' and officers' liability or blanket bond
insurance coverage to preserve claims of which the claiming party is aware.
No person shall be entitled to indemnification under this Section 4.10(f)
if such person is seeking indemnification based on a claim (other than a
claim arising as a supplier to, customer of or borrower from CFX or the CFX
Subsidiaries or Community or the Community Subsidiaries) brought by such
person or by an entity of which such person is a general partner, executive
officer, director, trustee, beneficiary or controlling person unless such
person has waived any right to participate in any damage or other award to
such claiming party or other entity in any such action, suit or proceeding.
ARTICLE 5.
CONDITIONS PRECEDENT
5.1. Conditions Precedent to the Obligations of All the Parties
The respective obligations of the Parties to effect the Transactions
shall be subject to satisfaction or waiver of the following conditions at
or prior to the Closing Date:
(a) All corporate action necessary to authorize the execution,
delivery and performance of the Transaction Documents and the consummation
of the Transactions shall have been duly and validly taken;
(b) The Parties shall have received all regulatory approvals
required or mutually deemed necessary in connection with the Transactions,
all notice periods and waiting periods required after the granting of any
such approvals shall have passed and all conditions contained in any such
approval required to have been satisfied prior to consummation of the
Transactions shall have been satisfied, provided that no such approval
shall have imposed any condition or requirement not reasonably foreseen as
of the date of this Agreement that would, in the reasonable good faith
opinion of the Board of Directors of CFX or Community, materially and
adversely affects the anticipated economic and business benefits to CFX of
the Transactions as to render consummation of the Transactions inadvisable,
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provided that no condition or requirement that relates primarily to
regulatory matters existing at the date hereof with respect to CFX's
business or activities shall be deemed to affect the business, operations,
financial condition, property or assets of the combined enterprise or of
Community or otherwise materially impair the value of Community to CFX;
(c) One of the following shall have occurred:
(i) a Registration Statement (including any post-effective
amendment thereto) shall have been filed with the SEC and shall be
effective under the Securities Act, and no proceeding shall be pending or
to the knowledge of CFX threatened by the SEC to suspend the effectiveness
of such Registration Statement;
(ii) the Parties shall have received a "no-action" letter from
the staff of the SEC stating that, by reason of the exemption afforded by
Section 3(a)(10) of the Securities Act, it will not recommend any
enforcement action to the SEC with respect to the issuance of CFX Common
Stock in exchange for Community Common Stock in connection with the Share
Exchange without registration thereof under the Securities Act and that
such shares do not constitute "restricted securities"; or
(iii) the Parties shall have received an opinion of Xxxxxx &
Xxxxxx to the effect that the issuance of CFX Common Stock in exchange for
Community Common Stock in connection with the Share Exchange is exempt from
the registration provisions of the Securities Act by reason of the
exemption afforded by Section 3(a)(10) thereof and that such shares do not
constitute "restricted securities";
(d) CFX shall have received all state securities or "Blue Sky"
permits or other authorizations, or confirmations as to the availability of
an exemption from registration requirements as may be necessary;
(e) To the extent that any lease, license, loan, financing
agreement or other contract or agreement to which Community is a party
requires the consent of or waiver from the other party thereto as a result
of the Transactions, such consent or waiver shall have been obtained,
unless the failure to obtain such consents or waivers, individually or in
the aggregate, would not have a Material Adverse Effect on Community;
(f) None of the Parties shall be subject to any order, decree or
injunction of a court or agency of competent jurisdiction which enjoins or
prohibits the consummation of the Transactions;
(g) The shares of CFX Common Stock that may be issued in the Share
Exchange shall have been approved for listing on the AMEX, subject to
official notice of issuance; and
(h) Community and CFX shall have received an opinion of Xxxxxx &
Xxxxxx, reasonably satisfactory to tax counsel for Community, substantially
to the effect that, on the basis of facts, representations and assumptions
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35
set forth in such opinion which are consistent with the state of facts
existing on the Effective Date:
(1) the Share Exchange shall either constitute a
reorganization for federal income tax purposes within the meaning of
Section 368(a) of the Code or be treated as part of a reorganization within
the meaning of Section 368(a) of the Code;
(2) no gain or loss will be recognized by a shareholder of
Community who exchanges all of the shareholder's Community Common Stock
(including each attached right issued pursuant to the Community Rights
Agreement) solely for CFX Common Stock in the Share Exchange (except with
respect to cash received in lieu of a fractional share interest in CFX
Common Stock);
(3) the tax basis of the CFX Common Stock received by a
shareholder who exchanges all of the shareholder's Community Common Stock
solely for CFX Common Stock in the Share Exchange will be the same as the
tax basis of the Community Common Stock surrendered in exchange therefor
(reduced by any amount allocable to a fractional share interest for which
cash is received); and
(4) the holding period of the shares of CFX Common Stock to
be received by a shareholder of Community will include the period during
which such shareholder held the shares of Community Common Stock
surrendered in exchange therefor, provided the Community Common Stock
surrendered is held as a capital asset on the Effective Date.
Each Party shall provide, in writing, a statement of facts,
representations and assumptions on which Xxxxxx & Xxxxxx may rely in
rendering its opinion, which facts, representations and assumptions shall
reflect the state of facts existing on the Effective Date.
5.2. Conditions Precedent to the Obligations of Community and the
Community Banks
The obligations of Community and the Community Banks to effect the
Transactions shall be subject to satisfaction of the following additional
conditions at or prior to the Closing Date unless waived by Community
pursuant to Section 6.4 hereof:
(a) The representations and warranties of CFX and CFX Bank set
forth in Article 3 hereof shall be true and correct in all material
respects as of the date of this Reorganization Agreement and as of the
Closing Date as though made on and as of the Closing Date (or on the date
when made in the case of any representation and warranty which specifically
relates to an earlier date), except as otherwise contemplated or permitted
by this Reorganization Agreement or consented to in writing by Community;
provided, however, that (i) in determining whether or not the condition
contained in this paragraph (a) shall be satisfied, no effect shall be
given to any exceptions in such representations and warranties relating to
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36
materiality or Material Adverse Effect, and (ii) the condition contained in
this paragraph (a) shall be deemed to be satisfied unless the failure of
such representations and warranties to be so true and correct constitute,
individually or in the aggregate, a Material Adverse Effect on CFX;
(b) CFX and CFX Bank shall have in all material respects performed
all obligations and complied with all of their covenants required by the
Transaction Documents prior to the Effective Date (including, without
limitation, the covenant set forth in Section 4.10(b) hereof);
(c) CFX and CFX Bank each shall have delivered to Community a
certificate, dated the Closing Date and signed by its President or Chief
Financial Officer to the effect that the conditions set forth in paragraphs
(a) and (b) of this section have been satisfied; and
(d) Community shall have received an opinion of Xxxxxx, Millimet &
Branch, counsel to CFX, dated the Closing Date, as to such matters as
Community may reasonably request with respect to the Transactions.
5.3. Conditions Precedent to the Obligations of CFX and CFX Bank
The respective obligations of CFX and CFX Bank to effect the
Transactions shall be subject to satisfaction of the following additional
conditions at or prior to the Closing Date unless waived by CFX pursuant to
Section 6.4 hereof:
(a) The representations and warranties of Community and the
Community Banks set forth in Article 2 hereof shall be true and correct in
all material respects as of the date of this Reorganization Agreement and
as of the Closing Date as though made on and as of the Closing Date (or on
the date when made in the case of any representation and warranty which
specifically relates to an earlier date), except as otherwise contemplated
or permitted by this Reorganization Agreement or consented to in writing by
CFX; provided, however, that (i) in determining whether or not the
condition contained in this paragraph (a) shall be satisfied, no effect
shall be given to any exceptions in such representations and warranties
relating to materiality or Material Adverse Effect, and (ii) the condition
contained in this paragraph (a) shall be deemed to be satisfied unless the
failure of such representations and warranties to be so true and correct
constitute, individually or in the aggregate, a Material Adverse Effect on
Community;
(b) Community and the Community Banks shall have, in all material
respects, performed all obligations and complied with all of their
covenants required by the Transaction Documents;
(c) Community and the Community Banks each shall have delivered to
CFX a certificate, dated the Closing Date and signed by its President and
Chief Executive Officer to the effect that the conditions set forth in
paragraphs (a) and (b) of this section have been satisfied;
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(d) No event shall have occurred that shall preclude the
Transactions from being accounted for as a pooling of interests;
(e) The Rights issued pursuant to the Community Rights Agreement
shall not have become nonredeemable, exercisable, distributed or triggered
pursuant to the terms of such agreement (unless, in the case of a
distribution or trigger, the effects can be cured by Community);
(f) CFX shall have received from KPMG Peat Marwick LLP a "comfort
letter" dated not more than five days prior to (i) the effective date of
the Registration Statement, if any, and, otherwise, the mailing date of the
Proxy Statement, and (ii) the Closing Date, with respect to certain
financial information regarding Community, in form and substance which is
customary in transactions such as the Transactions; and
(g) CFX shall have received an opinion of Xxxxx, Xxxx & Xxxxx LLP,
counsel to Community, dated the Closing Date, as to such matters as CFX may
reasonably request with respect to the Transactions.
ARTICLE 6.
TERMINATION, WAIVER AND AMENDMENT
6.1. Termination
This Reorganization Agreement and the other Transaction Documents
(other than the Stock Option Agreement, which shall be governed by the
terms thereof) may be terminated, either before or after approval by the
shareholders of CFX and Community:
(a) At any time on or prior to the Effective Date, by the mutual
consent in writing of the Parties;
(b) At any time on or prior to the Closing Date, by CFX in writing,
if Community or either of the Community Banks has, or by Community in
writing, if CFX or CFX Bank has, in any material respect, breached, and the
Party seeking to terminate the Transaction Documents has not, in any
material respect, breached (i) any covenant or agreement contained in the
Transaction Documents, or (ii) any representation or warranty contained
herein (without giving effect to any exceptions in such representations or
warranties relating to materiality or a Material Adverse Effect), and in
either case if such breach has not been cured by the earlier of 30 days
after the date on which written notice of such breach is given to the Party
committing such breach or the Closing Date (unless the breach, by its
nature, is curable within 30 days after the date of written notice thereof
and such 30-day cure period extends beyond the Closing Date, in which case
the Closing Date shall be delayed to permit the cure of the breach by the
breaching Party within such 30-day cure period); provided, however, that no
breach or breaches of any representation or warranty referenced in this
paragraph 6.1(b) shall be grounds for termination pursuant to this
paragraph 6.1(b) unless such breach or breaches, singly or in the
aggregate, shall have a Material Adverse Effect on the breaching party;
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(c) At any time, by any Party in writing, if the applications for
prior approval or consents referred to in Section 4.3 hereof have been
denied, and the time period for appeals and requests for reconsideration
has run, or if any governmental entity of competent jurisdiction shall have
issued a final non-appealable order enjoining or otherwise prohibiting the
Transactions or any of them;
(d) At any time, by any Party in writing, if the shareholders of
CFX or Community do not approve the Transactions or the shareholders of CFX
do not approve the Charter Amendment at the annual or special meetings duly
called for that purpose;
(e) By any Party in writing, if the Closing Date has not occurred
by the close of business on March 31, 1998 (the "Termination Date"), unless
the failure of the Closing to occur by such date shall be due to the
failure of the Party seeking to terminate this Reorganization Agreement and
the other Transaction Documents to perform or observe the covenants and
agreements set forth herein, provided that the Termination Date may be
extended until June 30, 1998 by any Party by written notice to the other
Parties (given not later than February 28, 1998) if the Closing shall not
have occurred because of failure to obtain approval from one or more
regulatory authorities whose approval is required in connection with this
Reorganization Agreement and the Transactions under circumstances in which
neither party has the right to terminate this Reorganization Agreement
pursuant to Section 6.1(c) hereof; or
(f) By Community, if (i) the CFX Price (as that term is defined in
the Plan of Exchange) is less than the Floor Price (as that term is defined
in the Plan of Exchange), (ii) Community provides written notice to CFX
prior to the third business day immediately preceding the Closing Date of
its intent to terminate this Reorganization Agreement and the other
Transaction Documents (other than the Stock Option Agreement) pursuant to
this Section 6.1(f), and (iii) CFX does not elect prior to the close of
business on the business day immediately preceding the Closing Date to
increase the Exchange Ratio (as that term is defined in the Plan of
Exchange) to the Cure Ratio (as that term is defined in the Plan of
Exchange).
6.2. Effect of Termination
(a) In the event this Reorganization Agreement and the other
Transaction Documents are terminated pursuant to Section 6.1 hereof, the
Transaction Documents (other than the Stock Option Agreement) shall become
void and have no effect, except that (i) this Section 6.2, the provisions
relating to confidentiality, expenses and governing law set forth in
Sections 4.5, 7.1 and 7.7 hereof, respectively, shall survive any such
termination and (ii) a termination pursuant to Section 6.1(b)(i) shall not
relieve the breaching Party from liability (in an action at law or
otherwise) for an uncured willful breach of such covenant or agreement
giving rise to such termination.
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(b) If this Reorganization Agreement is terminated, expenses of the
Parties hereto shall be determined as follows:
(1) Any termination of this Reorganization Agreement pursuant
to Sections 6.1(a), 6.1(c), 6.1(d), 6.1(e) or 6.1(f) hereof (other than as
a result of a willful breach or gross negligence by a Party hereto) shall
be without cost or expense on the part of any Party to the others; and
(2) In the event of a termination of this Reorganization
Agreement pursuant to Section 6.1(b) hereof as a result of a breach of a
representation, warranty or covenant which is caused by the willful conduct
or gross negligence of a Party, such Party shall (while remaining liable
for any liabilities or damages arising out of such willful breach or gross
negligence) be obligated to reimburse the other Parties for all
out-of-pocket costs and expenses, including, without limitation, reasonable
legal, accounting and investment banking fees and expenses, incurred by
such other Parties in connection with the entering into of this
Reorganization Agreement and the carrying out of any and all acts
contemplated hereunder (collectively referred to as "Expenses").
(c) The payment of Expenses is not an exclusive remedy, but is in
addition to any other rights or remedies available to the parties hereto at
law or in equity and notwithstanding anything to the contrary contained
herein, no Party shall be relieved or released from any liabilities or
damages arising out of its gross negligence or willful breach of any
provision of this Reorganization Agreement.
6.3. Non-Survival of Representations, Warranties and Covenants
All representations, warranties and covenants in this Reorganization
Agreement and the other Transaction Documents or in any instrument
delivered pursuant hereto or thereto shall expire on, and be terminated and
extinguished at, the Effective Date other than covenants that by their
terms are to survive or be performed after the Effective Date, provided
that no such representations, warranties or covenants shall be deemed to be
terminated or extinguished so as to deprive any Party (or any director,
officer or controlling person thereof) of any defense in law or equity
which otherwise would be available against the claims of any person,
including, without limitation, any shareholder or former shareholder of
either CFX or Community, the aforesaid representations, warranties and
covenants being material inducements to the consummation by the Parties of
the Transactions.
6.4. Waiver
Except with respect to any required shareholder or regulatory
approval, CFX and Community, respectively, by written instrument signed by
an executive officer of such Party, may at any time (whether before or
after approval of the Transaction Documents by the shareholders of CFX and
Community) extend the time for the performance of any of the obligations or
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other acts of the Community Entities, on the one hand, or the CFX Entities,
on the other hand, and may waive (i) any inaccuracies of the Parties in the
representations or warranties contained in the Transaction Documents or any
document delivered pursuant hereto or thereto, (ii) compliance with any of
the covenants, undertakings or agreements of the Parties, or satisfaction
of any of the conditions precedent to its obligations, contained in the
Transaction Documents, or (iii) the performance by such parties of any of
its obligations set out herein or therein; provided, however, that, after
any such approval by the shareholders of Community, no such modification
shall (i) alter or change the amount or kind of consideration to be
received by holders of Community Common Stock as provided in the Plan of
Exchange, or (ii) adversely affect the tax treatment to Community
shareholders as a result of the receipt of such consideration.
6.5. Amendment or Supplement
The Transaction Documents may be amended or supplemented at any time
by mutual agreement of the parties thereto. Any such amendment or
supplement must be in writing and approved by their respective boards of
directors and/or officers authorized thereby and shall be subject to the
proviso in Section 6.4 hereof.
ARTICLE 7.
MISCELLANEOUS
7.1. Expenses
Except as provided in Section 6.2(b) hereof, each Party shall bear
and pay all costs and expenses incurred by it in connection with the
Transactions, including fees and expenses of its own financial consultants,
accountants and counsel, provided, however, that CFX and Community each
shall bear and pay 50 percent of all filing fees associated with the Proxy
Statements insofar as they pertain to the Transactions and with the
Registration Statement, if required.
7.2. Entire Agreement
The Transaction Documents contain the entire agreement between the
parties with respect to the Transactions and supersede all prior
arrangements or understandings with respect thereto, written or oral, other
than documents referred to herein or therein and the Confidentiality
Agreement. The terms and conditions of the Transaction Documents shall
inure to the benefit of and be binding upon the Parties and thereto and
their respective successors. Except as specifically set forth in the
Transaction Documents, nothing in the Transaction Documents, expressed or
implied, is intended to confer upon any person, other than the Parties, and
their respective successors, any rights, remedies, obligations or
liabilities.
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7.3. No Assignment
No Party may assign any of its rights or obligations under this
Reorganization Agreement to any other person.
7.4. Notices
All notices or other communications which are required or permitted
hereunder shall be in writing and sufficient if delivered personally or
sent by facsimile transmission or overnight express or by registered or
certified mail, postage prepaid, addressed as follows:
If to Community or the Community Banks:
Community Bankshares, Inc.
00 Xxxxx Xxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxxx Xxxxxxxxxx
Facsimile No.: 000-000-0000
With a copy to:
Xxxxx, Xxxx & Xxxxx LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esquire
Facsimile No.: 000-000-0000
If to CFX or CFX Bank:
CFX Corporation
000 Xxxx Xxxxxx
Xxxxx, XX 00000
Attention: Xxxx X. Xxxxx
Facsimile No.: 000-000-0000
With a copy to:
Xxxxxx & Xxxxxx
000 Xxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx Xxxxxx, Esquire
Facsimile No.: 000-000-0000
7.5. Captions
The captions contained in this Reorganization Agreement are for
reference purposes only and are not part of this Reorganization Agreement.
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7.6. Counterparts
This Reorganization Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement. This Agreement may be executed by facsimile transmission.
7.7. Governing Law
This Reorganization Agreement shall be governed by and construed in
accordance with the laws of the State of New Hampshire applicable to
agreements made and entirely to be performed within 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 Agreement and Plan of Reorganization 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.
COMMUNITY BANKSHARES, INC.
By:
---------------------------------------
Xxxxxxx Xxxxxxxxxx
President and Chief Executive Officer
CONCORD SAVINGS BANK
By:
---------------------------------------
Xxxxxxx Xxxxxxxxxx
President and Chief Executive Officer
CENTERPOINT BANK
By:
---------------------------------------
Name:
----------------------------------
Title:
---------------------------------
CFX CORPORATION
By:
---------------------------------------
Xxxxx X. Xxxxxx,
President and Chief Executive Officer
CFX BANK
By:
---------------------------------------
Xxxxx X. Xxxxxx,
President and Chief Executive Officer
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ANNEX A
PLAN OF SHARE EXCHANGE
PURSUANT TO THIS PLAN OF SHARE EXCHANGE (this "Plan of Exchange"),
dated as of March 24, 1997, CFX CORPORATION ("CFX"), a New Hampshire
corporation, shall, subject to the terms and conditions specified herein
and in a related Agreement and Plan of Reorganization dated as of even date
herewith (the "Reorganization Agreement"), acquire through a share exchange
all the outstanding shares of COMMUNITY BANKSHARES, INC. ("Community"), a
New Hampshire corporation.
ARTICLE 1.
SHARE EXCHANGE
1.1. On the Effective Date (as hereinafter defined), each share of
common stock of Community, par value $1.00 per share ("Community Common
Stock"), outstanding immediately prior to the Effective Date (except as
provided in Paragraphs 4, 7 and 8 of this Article), including each attached
right issued pursuant to the Community Rights Agreement (as defined in
Section 2.1(a) of the Reorganization Agreement), shall be converted without
any action on the part of the holder thereof into an amount of common
stock, par value $0.66 2/3 per share, of CFX ("CFX Common Stock") equal to
one share multiplied by the Exchange Ratio as determined below (rounded to
the nearest four decimal places).
1.2. As used herein, the term "CFX Price" shall mean the average of
the averages of the high and low prices of CFX Common Stock on the American
Stock Exchange (as reported by The Wall Street Journal) for each of the 15
consecutive trading days ending on the business day before the Effective
Date.
1.3. (a) For purposes of this Plan of Exchange, the Exchange Ratio
shall be 2.2 shares of CFX Common Stock for each share of Community Common
Stock; provided, however, that (i) the Exchange Ratio shall be 2.0 shares
of CFX Common Stock for each share of Community Stock if the CFX Price is
greater than $20.00; (ii) the Exchange Ratio shall be $40.00 / the CFX
Price, if the CFX Price is greater than $18.18 but not greater than $20.00;
and (iii) the Exchange Ratio shall be $29.70 / the CFX Price (the "Cure
Ratio"), if the CFX Price is $13.50 (the "Floor Price") or less and CFX has
elected to increase the Exchange Ratio in accordance with Section 6.1(f) of
the Reorganization Agreement.
(b) Notwithstanding the provisions of the preceding
subparagraph (a), in the event that before the Effective Date an
announcement is made with respect to a business combination involving the
acquisition of CFX or a substantial portion of its assets, the Exchange
Ratio shall not be less than 2.2 shares of CFX Common Stock for each share
of Community Common Stock
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1.4. On the Effective Date, all shares of Community Common Stock
held in the treasury of Community or owned beneficially by any subsidiary
of Community other than in a fiduciary capacity or in connection with a
debt previously contracted and all shares of Community Common Stock owned
by CFX or owned beneficially by any subsidiary of CFX other than in a
fiduciary capacity or in connection with a debt previously contracted shall
be canceled and no cash, stock or other property shall be delivered in
exchange therefor.
1.5. (a) Prior to the Effective Date, CFX shall appoint a bank,
trust company or other stock transfer agent selected by CFX as the exchange
agent (the "Exchange Agent") to effect the exchange of certificates
evidencing shares of Community Common Stock (any such certificate being
hereinafter referred to as a "Certificate") for shares of CFX Common Stock
to be received in the share exchange. On the Effective Date, CFX shall
have granted the Exchange Agent the requisite power and authority to effect
for and on behalf of CFX the issuance of the number of shares of CFX Common
Stock issuable in the share exchange.
(b) Within five business days after the Effective Date, the
Exchange Agent shall mail to each holder of record of Community Common
Stock as of the Effective Date a notice of consummation of the share
exchange and a form of transmittal letter pursuant to which each such
shareholder shall transmit the Certificate or Certificates, or, in lieu
thereof, such evidence of lost, stolen or mutilated Certificate or
Certificates and such surety bond as the Exchange Agent may reasonably
require in accordance with customary exchange practices. Community
shareholders who satisfy such requirements for lost, stolen or mutilated
certificates shall for purposes of the exchange procedures set forth herein
be deemed to have submitted Certificates for Community Common Stock. As
soon as practicable after surrender of such Certificate to the Exchange
Agent with a properly completed transmittal letter, the Exchange Agent will
promptly mail by first class mail to such shareholder a certificate or
certificates representing the number of full shares of CFX Common Stock
into which the shares of Community Common Stock evidenced by the
Certificate surrendered shall have been converted pursuant to this Plan of
Exchange.
(c) The Exchange Agent shall accept such Certificates upon
compliance with such reasonable terms and conditions as the Exchange Agent
may impose to effect an orderly exchange thereof in accordance with
customary exchange practices. Until so surrendered, each Certificate shall
be deemed for all purposes to evidence ownership of the number of shares of
CFX Common Stock into which the shares represented by such Certificates
have been changed or converted as aforesaid. No dividends or other
distributions declared after the Effective Date with respect to CFX Common
Stock shall be paid to the holder of any unsurrendered Certificate until
the holder thereof shall surrender such Certificate in accordance with this
Article I. After the surrender of a Certificate in accordance with this
Article I, the record holder thereof shall be entitled to receive any such
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dividends or other distributions, without any interest thereon, which
theretofore had become payable with respect to shares of CFX Common Stock
represented by such Certificate.
(d) No transfer taxes shall be payable by any shareholders of
Community in respect of the issuance of certificates for CFX Common Stock
and no expenses shall be imposed on any shareholder of Community in
connection with the conversion of shares of Community Common Stock into
shares of CFX Common Stock and the delivery of such shares to the former
holder of Community Common Stock entitled thereto, except that, if any
certificate for shares of CFX Common Stock is to be issued in a name other
than that in which a certificate or certificates for shares of Community
Common Stock surrendered shall have been registered, it shall be a
condition to such issuance that the person requesting such issuance shall
pay to CFX any transfer taxes payable by reason thereof or of any prior
transfer of such surrendered certificate or certificates or establish to
the reasonable satisfaction of the Exchange Agent that such taxes have been
paid or are not payable.
(e) Certificates surrendered for exchange by any person who is
an "affiliate" of Community for purposes of Rule 145(c) under the
Securities Act of 1933, as amended, shall not be exchanged for certificates
representing shares of CFX Common Stock until CFX has received the written
agreement of such person contemplated by Section 4.9 of the Reorganization
Agreement. If any certificate for shares of Community Common Stock 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 reasonable satisfaction of CFX or its agent that such
taxes are not payable.
1.6. Upon the Effective Date, the stock transfer books of Community
shall be closed and no transfer of Community Common Stock shall thereafter
be made or recognized. Any other provision of this Plan of Exchange
notwithstanding, neither CFX or its agent nor any party to the share
exchange shall be liable to a holder of Community Common Stock for any
amount paid or property delivered in good faith to a public official
pursuant to any applicable abandoned property, escheat or similar law.
1.7. In the event that, between the date hereof and prior to the
Effective Date, the outstanding shares of CFX Common Stock or Community
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 split or other
like changes in the capitalization of CFX or Community, or if a stock
dividend is declared on CFX Common Stock or Community Common Stock with a
record date within such period, then an appropriate and proportionate
adjustment shall be made in the number and kind of shares of CFX Common
Stock to be thereafter delivered pursuant to this Plan of Exchange, and the
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dollar amounts and the Exchange Ratio set forth in Section 3 of this
Article I, so that each shareholder of Community shall be entitled to
receive such number of shares of CFX Common Stock or other securities as
such shareholder would have received pursuant to such reorganization,
recapitalization, reclassification, stock split, exchange or shares or
readjustment or other like changes in the capitalization of CFX or
Community, or as a result of a stock dividend on CFX Common Stock or
Community Common Stock, had the record date therefor been immediately
following the Effective Date.
1.8. Notwithstanding any other provision hereof, each holder of
shares, or of options to purchase shares, of Community Common Stock who
would otherwise have been entitled to receive a fraction of a share of CFX
Common Stock (after taking into account all Certificates delivered by such
holder or all shares such holder is entitled to receive in accordance with
Article III hereof) shall receive (by check from the Exchange Agent, mailed
to the shareholder with the certificate(s) for CFX Common Stock which such
holder is to receive pursuant to the share exchange), in lieu thereof, cash
in an amount equal to such fractional part of a share of CFX Common Stock
multiplied by the "market value" of such Common Stock. The "market value"
of one share of CFX Common Stock shall be the closing price of CFX Common
Stock on the American Stock Exchange (as reported by The Wall Street
Journal) on the last business day preceding the Effective Date. No such
holder shall be entitled to dividends, voting rights or any other
shareholder right in respect of any fractional share.
1.9. On the Effective Date, the share exchange contemplated hereby
shall have the effect set forth in Section 293-A:11.06 of the New Hampshire
Revised Statutes Annotated.
ARTICLE 2.
DISSENTERS' RIGHTS
Notwithstanding anything in this Plan of Exchange to the contrary and
unless otherwise provided by applicable New Hampshire law, shares of
Community Common Stock that are issued and outstanding immediately prior to
the Effective Date and that are owned by stockholders who, pursuant to
applicable New Hampshire law, (1) deliver to Community before the taking of
the vote of Community's stockholders on the Plan of Exchange a written
notice of their intent to demand payment for their shares of Community
Common Stock if the share exchange is effectuated, and (2) do not vote
their shares in favor of this Plan of Exchange (the "Dissenting Shares"),
shall not be converted into the right to receive, or be exchangeable for,
shares of CFX Common Stock, but, instead, the holders of such Dissenting
Shares shall be entitled to payment of the fair value of such Dissenting
Shares, plus accrued interest, in accordance with applicable New Hampshire
law. If any holders of Community Common Stock shall have failed to perfect
or shall have effectively withdrawn, waived or lost the right to dissent
from the share exchange and to receive the fair value of such shares as
provided under applicable New Hampshire law, the shares of Community Common
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Stock held by such holder shall be deemed to have been converted into and
be exchangeable for shares of CFX Common Stock on the Effective Date.
ARTICLE 3.
STOCK OPTIONS
On the Effective Date, each then outstanding stock option to
purchase Community Common Stock ("Community Option") pursuant to the 1985
Stock Option Plan, the 1988 Stock Option Plan, the 1989 Centerpoint Bank
Stock Option Plan, the 1992 Stock Option Plan or the 1991 Employee Stock
Purchase Plan (collectively, the "Community Stock Option Plans") (it being
understood that the aggregate number of shares of Community Common Stock
subject to purchase pursuant to the exercise of such Community Options
(excluding those under the 1991 Employee Stock Purchase Plan) is not and
shall not be more than 95,379), whether vested or unvested, will be assumed
by CFX. Each Community Option so assumed by CFX under this Agreement shall
continue to have, and be subject to, the same terms and conditions set
forth in the Community Stock Option Plans immediately prior to the
Effective Date, except that (i) such Community Option shall be exercisable
(when vested) for that number of whole shares of CFX Common Stock equal to
the product of the number of shares of Community Common Stock covered by
the Community Option multiplied by the Exchange Ratio, provided that any
fractional share of CFX Common Stock resulting from such multiplication
shall be rounded down to the nearest share; and (ii) the exercise price per
share of CFX Common Stock shall be equal to the exercise price per share of
Community Common Stock of such Community Option, divided by the Exchange
Ratio, provided that such exercise price shall be rounded up to the nearest
cent. It is the intention of the parties that the Community Options
assumed by CFX qualify following the Effective Date as incentive stock
options as defined in Section 422 of the Internal Revenue Code of 1986, as
amended to the extent that the Community Options qualified as incentive
stock options immediately prior to the Effective Date.
ARTICLE 4.
EFFECTIVE DATE OF THE SHARE EXCHANGE
Articles of share exchange evidencing the transactions contemplated
herein shall be delivered to the New Hampshire Secretary of State in
accordance with applicable New Hampshire law. The share exchange
contemplated hereby shall be effective at the time and on the date
specified in such articles of share exchange (such date and time being
herein referred to as the "Effective Date").
ARTICLE 5.
CONDITIONS PRECEDENT
The obligations of CFX and Community to effect the share exchange as
herein provided shall be subject to satisfaction, unless duly waived, of
the conditions set forth in the Reorganization Agreement.
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ARTICLE 6.
TERMINATION
Anything contained in this Plan of Exchange to the contrary
notwithstanding, and notwithstanding the adoption hereof by the
shareholders of Community, this Plan of Exchange may be terminated and the
share exchange abandoned as provided in the Reorganization Agreement.
ARTICLE 7.
MISCELLANEOUS
7.1. This Plan of Exchange may be amended or supplemented at any
time prior to its Effective Date by mutual agreement of CFX and Community.
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.
7.2. Any notice or other communication required or permitted under
this Plan of Exchange shall be given, and shall be effective, in accordance
with the provisions of the Reorganization Agreement.
7.3. 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 Exchange.
7.4. This Plan of Exchange shall be governed by and construed in
accordance with the laws of New Hampshire applicable to the internal
affairs of Community and CFX.
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ANNEX B
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Plan of Merger"), dated as
of March 24, 1997, is by and among Concord Savings Bank, a New Hampshire
state-chartered savings bank ("Concord Bank"), Centerpoint Bank, a New
Hampshire state-chartered commercial bank ("Centerpoint Bank"), and CFX
BANK ("CFX Bank"), a New Hampshire state chartered savings bank, and is
joined in by COMMUNITY BANKSHARES, INC. ("Community"), a New Hampshire
corporation, and CFX CORPORATION ("CFX"), a New Hampshire Corporation.
WITNESSETH
WHEREAS, the respective Boards of Directors of Concord Bank,
Centerpoint Bank and CFX Bank deem the merger of Concord Bank and
Centerpoint Bank with and into CFX Bank, under and pursuant to the terms
and conditions herein set forth or referred to, desirable and in the best
interests of the respective banks and their respective shareholders, and
the respective Boards of Directors of Concord Bank, Centerpoint Bank and
CFX Bank have adopted resolutions approving this Plan of Merger and a
related Agreement and Plan of Reorganization dated as of even date herewith
(the "Reorganization Agreement").
WHEREAS, Community, the sole shareholder of Concord Bank and
Centerpoint Bank, and CFX, the sole shareholder of CFX Bank, have consented
to and joined in this Plan of Merger and have entered into the
Reorganization Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto do hereby agree as follows:
ARTICLE 1.
BANK MERGER
Subject to the terms and conditions of this Plan of Merger, on the
Effective Date (as hereinafter defined), Concord Bank and Centerpoint Bank
shall be merged with and into CFX Bank, pursuant to the provisions of, and
with the effect provided in, Title 35 of the New Hampshire Revised Statutes
Annotated (the "Bank Merger"). On the Effective Date, the separate
existence of Concord Bank and Centerpoint Bank shall cease and CFX Bank, as
the surviving entity, shall continue unaffected and unimpaired by the Bank
Merger (CFX Bank, as existing on and after the Effective Date, being
hereinafter sometimes referred to as the "Surviving Bank").
ARTICLE 2.
ARTICLES OF AGREEMENT AND BY-LAWS
The Amended and Restated Articles of Agreement and the By-laws of CFX
Bank in effect immediately prior to the Effective Date shall be the
Articles of Agreement and the By-laws of the Surviving Bank, amended as set
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forth below, in each case until amended in accordance with applicable law.
The Articles of Agreement of the Surviving Bank shall be amended effective
upon the Effective Date to add the following paragraph to the end of
existing Article VI:
"The Bank shall assume the Distribution and Liquidation Account (the
"Liquidation Account") initially established and maintained by
Concord Savings Bank for the benefit of Concord Savings Bank's
eligible savings account holders as of May 8, 1986 ("eligible
savers"). Notwithstanding any provision of these Articles or of the
By-laws of the Bank to the contrary, in the event of a complete
liquidation of the Bank, it shall comply with such regulations with
respect to the amount and the priorities on liquidation of each of
the Bank's eligible savers' inchoate interest in the Liquidation
Account, to the extent it is still in existence; provided, that an
eligible saver's inchoate interest in the Liquidation Account shall
not entitle such eligible saver to any voting rights at meetings of
the Bank's shareholders."
ARTICLE 3.
DIRECTORS AND OFFICERS
The directors of CFX Bank immediately prior to the Effective Date,
together with three directors of Community to be designated by Community in
accordance with Section 4.10(c) of the Reorganization Agreement, will be
the directors of the Surviving Bank on the Effective Date. The officers of
CFX Bank immediately prior to the Effective Date shall be the officers of
the Surviving Bank on the Effective Date, except then Xx. Xxxxxxx
Xxxxxxxxxx, if he is the President and Chief Executive Officer of Concord
Bank immediately prior to the Effective Date, shall become the President
and Chief Executive Officer of the Surviving Bank on the Effective Date.
ARTICLE 4.
CAPITAL
The shares of capital stock of CFX Bank issued and outstanding
immediately prior to the Effective Date shall be the shares of the
Surviving Bank issued and outstanding on the Effective Date.
ARTICLE 5.
CANCELLATION OF CONCORD AND CENTERPOINT STOCK
Each share of Concord Bank and Centerpoint Bank capital stock issued
and outstanding immediately prior to the Effective Date shall, by virtue of
the Bank Merger, be cancelled on the Effective Date, and no cash, stock or
other property shall be delivered in exchange therefor.
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ARTICLE 6.
EFFECTIVE DATE OF THE BANK MERGER
Certificates or articles of merger evidencing the transactions
contemplated herein shall be delivered to the New Hampshire Secretary of
State in accordance with applicable New Hampshire law. The Bank Merger
shall be effective at the time and on the date specified in such
certificates or articles of merger (such date and time being herein
referred to as the "Effective Date").
ARTICLE 7.
CONDITIONS PRECEDENT
The obligations of Concord Bank, Centerpoint Bank and CFX Bank to
effect the Bank Merger as herein provided shall be subject to satisfaction,
unless duly waived, of the conditions set forth in the Reorganization
Agreement.
ARTICLE 8.
TERMINATION
Anything contained in this Plan of Merger to the contrary
notwithstanding, this Plan of Merger may be terminated and the Bank Merger
abandoned as provided in the Reorganization Agreement.
ARTICLE 9.
MISCELLANEOUS
9.1. This Plan of Merger may be amended or supplemented at any time
prior to the Effective Date by mutual agreement of the parties hereto. Any
such amendment or supplement must be in writing and approved by the
parties' respective Boards of Directors and/or by officers authorized
thereby.
9.2. 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.
9.3. 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.
9.4. This Plan of Merger shall be governed by and construed in
accordance with the laws of New Hampshire applicable to the internal
affairs of Concord Bank, Centerpoint Bank and CFX Bank.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Agreement and Plan of Merger to be executed in
counterparts by their duly authorized officers and their corporate seals to
be hereunto affixed and attested by their officers thereunto duly
authorized, all as of the day and year first above written.
CONCORD SAVINGS BANK
By:
---------------------------------------
Xxxxxxx Xxxxxxxxxx
President and Chief Executive Officer
CENTERPOINT BANK
By:
---------------------------------------
Name:
----------------------------------
Title:
---------------------------------
CFX BANK
By:
---------------------------------------
Xxxxx X. Xxxxxx,
President and Chief Executive Officer
JOINED IN BY:
COMMUNITY BANKSHARES, INC.
By:
---------------------------------------
Xxxxxxx Xxxxxxxxxx
President and Chief Executive Officer
CFX CORPORATION
By:
---------------------------------------
Xxxxx X. Xxxxxx,
President and Chief Executive Officer
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