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EXHIBIT 2.1
As Executed
AGREEMENT AND PLAN OF MERGER
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This AGREEMENT AND PLAN OF MERGER (this "Agreement") is made as of
October 12, 2004, by and between OAK HILL FINANCIAL, INC., an Ohio corporation
("Oak Hill Financial"), and XXXXXXXX FINANCIAL HOLDINGS, INC., a Maryland
corporation ("Xxxxxxxx Financial").
RECITALS
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A. Oak Hill Financial is a registered bank holding company under
the Bank Holding Company Act of 1956, as amended. Oak Hill Banks, an
Ohio-chartered commercial bank ("Oak Hill Banks"), is a wholly owned subsidiary
of Oak Hill Financial. Oak Hill Financial is a corporation organized and
existing under the laws of Ohio and is authorized to issue 15,000,000 shares of
common stock, without par value ("Oak Hill Common"), of which 5,544,514 shares
were issued and outstanding as of the date hereof, and (ii) 1,500,000 voting
shares of preferred stock, without par value, and 1,500,000 non-voting shares of
preferred stock, without par value, of which there are no shares issued and
outstanding as of the date hereof.
X. Xxxxxxxx Financial is a registered savings and loan holding
company under the Home Owners' Loan Act, as amended. Xxxxxxxx Federal Savings
Bank ("Xxxxxxxx Federal") and Xxxxxxxx Financial Services Corp., are wholly
owned subsidiaries of Xxxxxxxx Financial. Xxxxxxxx Financial is a corporation
organized and existing under the laws of Maryland and is authorized to issue
4,000,000 shares of common stock with a par value of one cent ($.01) per share
("Xxxxxxxx Financial Common"), of which 650,110 shares were issued and
outstanding as of the date hereof and 1,000,000 shares of preferred stock with a
par value of one cent ($.01), of which there are no shares issued and
outstanding as of the date hereof.
C. The respective Boards of Directors of Oak Hill Financial and
Xxxxxxxx Financial have approved the merger of Xxxxxxxx Financial with and into
Oak Hill Financial (the "Merger") substantially on the terms and conditions
contained in this Agreement.
D. Immediately following the consummation of the Merger, it is
anticipated Oak Hill Banks will merge with and into Xxxxxxxx Federal under the
terms of the Agreement and Plan of Merger by and between Oak Hill Banks and
Xxxxxxxx Federal (or its successor as an Ohio state-charted banking
organization), attached hereto as Exhibit A.
E. The parties intend that the Merger shall qualify as a
reorganization under the revisions of Section 368(a) of the Code and the parties
intend, by executing this Agreement, to adopt a plan of reorganization within
the meaning of Treasury Regulation Section 1.368-2(g).
AGREEMENT
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In consideration of the foregoing and of the mutual promises contained
herein, the parties agree as follows:
SECTION 1. DEFINITIONS
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1.01 Definitions Contained Elsewhere in this Agreement. For the
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purposes of this Agreement, the following terms shall have the meanings assigned
to them in the preamble and Recitals of this Agreement:
(a) this "Agreement";
(b) "Xxxxxxxx Financial";
(c) "Xxxxxxxx Financial Common";
(d) "Oak Hill Banks";
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(e) "Oak Hill Financial";
(f) the "Merger"; and
(g) "Oak Hill Common"
1.02 Other Definitions. For the purposes of this Agreement, certain
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other terms shall be defined as follows:
(a) the "1933 Act" means the Securities Act of 1933, as amended;
(b) the "1934 Act" means the Securities Exchange Act of 1934, as
amended;
(c) an "Acquisition Proposal" means an inquiry received from,
or an offer or proposal made by or on behalf of, any other corporation, firm,
association, person, or other entity relating to (i) the possible acquisition of
more than 25 percent of the shares of the capital stock of Xxxxxxxx Financial,
including, but not limited to, an exchange or tender offer therefor, (ii) the
possible acquisition of a majority of the assets of Xxxxxxxx Financial, (iii) a
merger or consolidation involving Xxxxxxxx Financial, other than a transaction
in which Xxxxxxxx Financial will be the owner of all of the stock of the
surviving corporation following the transaction, or (iv) a merger or
consolidation involving Xxxxxxxx Financial, other than a transaction in which
Xxxxxxxx Financial will be the surviving corporation and the current
stockholders of Xxxxxxxx Financial will be the owners of a majority of the stock
of the surviving corporation following the transaction;
(d) an "Affiliate" of a party means a director, officer,
employee, agent, or adviser of such party;
(e) the "Audited Financial Statements" mean the consolidated,
audited financial statements of Xxxxxxxx Financial, consisting of balance sheets
as of December 31, 2003, and statements of income, cash flows, and changes in
stockholders' equity for the fiscal years ended December 31, 2003, with the
report thereon of Xxxxx Xxxxxx and Company LLC, a registered public accounting
firm. If a set of consolidated, audited financial statements of Xxxxxxxx Federal
for a fiscal period ended as of a date after December 31, 2003, are subsequently
audited by any registered public accounting firm, such later statements shall be
the statements to which reference is made;
(f) "Average Closing Price" shall mean the average of the last
sales prices of Oak Hill Common during the primary trading session of the Nasdaq
National Market System (as reported in a mutually agreed upon authoritative
source) for the twenty most recent full trading days in which such shares are
traded on the Nasdaq National Market System ending at the closing of trading on
the date four business days prior to the Closing Date.
(g) "BIF" means the Bank Insurance Fund of the FDIC;
(h) "CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended;
(i) the "Code" means the Internal Revenue Code of 1986, as
amended;
(j) "Confidential Information" of or relating to a party means
any and all information received from or on behalf of such party or their
Affiliates concerning the Merger, the terms of this Agreement, or the assets,
business, operations, or financial condition of such party or their Affiliates,
unless and to the extent that any such information is in the public domain;
(k) "CRA" means the Community Reinvestment Act of 1977, as
amended;
(l) the "Division of Financial Institutions" means the
Division of Financial Institutions, Ohio Department of Commerce;
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(m) "Employee Benefit Plans" means any and all "employee
benefit plans" or "welfare benefit plans" as defined in ERISA;
(n) "Environmental Law" means CERCLA, the Resource
Conservation and Recovery Act, the Hazardous Materials Transportation Act, the
Toxic Substances Control Act, the Federal Water Pollution Control Act, the Clean
Water Act, the Clean Air Act, regulations promulgated thereunder, and any other
federal, state, county, municipal, local, foreign, provincial, or other statute
law, ordinance, or regulation which may relate to or deal with human health or
the environment, all as may be amended from time to time.
(o) "ERISA" means the Employee Retirement Income Security Act
of 1974, as amended;
(p) "Exempt Xxxxxxxx Financial Employees" means Xx. Xxxx X.
Xxxxx and Xx. XxxXxx Xxxxxxx;
(q) "FDIC" means the Federal Deposit Insurance Corporation;
(r) the "Federal Reserve Board" means the Board of Governors
of the Federal Reserve System, or its delegate;
(s) "Hazardous Substances" means (i) any "hazardous substance"
as defined in Section 101(14) of CERCLA or regulations promulgated thereunder;
(ii) any "solid waste," "hazardous waste," or "infectious waste," as such terms
are defined in any other Environmental Law; (iii) asbestos, urea-formaldehyde,
polychlorinated biphenyls (PCBs), nuclear fuel or material, chemical waste,
radioactive material, explosives, known carcinogens, petroleum products and
by-products, and other dangerous, toxic, or hazardous pollutants, contaminants,
chemicals, materials, or substances listed or identified in, or regulated by,
any Environmental Law; and (iv) any other substances or materials which are
classified or considered to be hazardous or toxic under any Environmental Law;
(t) "Knowledge" as used herein shall mean those facts that are
actually known or should reasonably have been known after due inquiry by the
President, or any Senior or Executive Vice President of any party hereto;
(u) the "Xxxxxxxx Financial Disclosure Memorandum" means a
certain Disclosure Memorandum, dated October 8, 2004, which has been previously
delivered by Xxxxxxxx Financial to Oak Hill Financial, as the same has been
amended and supplemented through the date of this Agreement, and as the same may
subsequently be amended or supplemented prior to the Effective Date;
(v) "Material Adverse Effect" means a material adverse change
in the consolidated results of operations, financial condition, properties, or
business of Xxxxxxxx Financial or Oak Hill Financial, as the case may be, other
than any such change attributable to or resulting from (i) changes in law,
regulation, or generally accepted accounting principles of general application
to the banking or thrift industries, (ii) changes in economic conditions that
affect the banking and thrift industries generally, including changes in the
general level of interest rates, (iii) any matter or matters relating to
Xxxxxxxx Financial or Oak Hill Financial which have been disclosed in the
Xxxxxxxx Financial Disclosure Memorandum or the Oak Hill Financial Disclosure
Memorandum as of the date of this Agreement, (iv) actions and omissions of Oak
Hill Financial or Xxxxxxxx Financial taken with the prior written consent of the
other in contemplation of the transactions contemplated hereby or (v) direct
effects of compliance with this Agreement on the operating performance of the
parties, including expenses incurred by the parties in consummating the
transactions contemplated by this Agreement.
(w) the "Oak Hill Disclosure Memorandum" means a certain
Disclosure Memorandum, dated October 11, 2004, which has been previously
delivered by Oak Hill Financial to Xxxxxxxx Financial, as the same has been
amended and supplemented through the date of this Agreement, and as the same may
subsequently be amended or supplemented prior to the Effective Date;
(x) "Oak Hill Financial Rights" means rights to purchase
shares of Oak Hill Common and Oak Hill Financial preferred stock under the Oak
Hill Rights Agreement.
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(y) "Oak Hill Financial Rights Agreement" means the Rights
Agreement, dated as of January 23, 1998, as amended as of December 26, 0000,
xxxxxxx Xxx Xxxx Financial and Registrar and Transfer Company, as Rights Agent.
(z) a "Principal Shareholder" or a "Principal Stockholder" of
a party means a person who owns five percent or more of the outstanding shares
of any class of the capital stock of such party;
(aa) "Proxy Statement" means the proxy statement used by
Xxxxxxxx Financial to solicit the approval of its shareholders of the
transactions contemplated by the Agreement, which shall include the prospectus
of Oak Hill Financial relating to the issuance of shares of Oak Hill Common to
certain holders of Xxxxxxxx Financial Common.
(bb) the "Real Property" means any and all real property owned
or leased by Xxxxxxxx Financial or Oak Hill Banks, as appropriate, as of the
date of this Agreement or acquired at any time after the date of this Agreement
and prior to the Effective Time, together with any and all improvements thereon;
(cc) the "Registration Statement" means the Registration
Statement on Form S-4, or other appropriate forms, filed or to be filed by Oak
Hill Financial with the SEC under the provisions of the 1933 Act for the purpose
of registering the shares of Oak Hill Common to be issued by Oak Hill Financial
pursuant to the terms of this Agreement, including, but not limited to, the
prospectus and Proxy Statement to be included therein as a part thereof;
(dd) "SAIF" means the Savings Association Insurance Fund;
(ee) the "SEC" means the Securities and Exchange Commission;
(ff) the term "Tax" or "Taxes" means (i) all federal, state,
local, and foreign income, excise, gross receipts, gross income, AD VALOREM,
profits, gains, property, use, capital, sales, transfer, use, payroll,
employment, severance, occupancy, withholding, duties, intangibles, franchise,
backup withholding, and other taxes, charges, duties, levies or like assessments
together with all penalties and additions to tax and interest thereon and (ii)
any liability for Taxes described in clause (i) under Treasury Regulation
Section 1.1502-6 (or any similar provision of state, local or foreign law and
liability for any taxes as a result of being a party to any tax sharing or
obligations to indemnify any party);
(gg) "Tax Returns" means all federal, state, local and foreign
Tax returns, reports, estimates, declarations, schedules, information returns,
reports and forms, and any amendments to any of the foregoing relating to Taxes,
required to be filed with any governmental authority; and
(hh) an "Unsolicited Acquisition Proposal" means a written
Acquisition Proposal that is received by Xxxxxxxx Financial or made public by or
on behalf of the proponent of such Acquisition Proposal without any solicitation
of such proposal by any director, officer, employee, agent, or other person
acting on behalf of Xxxxxxxx Financial.
SECTION 2. AGREEMENT AND PLAN OF MERGER
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2.01. Merger Transaction. Subject to the terms and conditions hereof,
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Xxxxxxxx Financial shall be merged with and into Oak Hill Financial (the
"Merger") at the "Effective Time" (as such term is defined in Section 2.02
hereof). Oak Hill Financial shall be the surviving corporation following the
consummation of the Merger (the "Surviving Corporation"), which shall continue
its corporate existence under the laws of Ohio. Xxxxxxxx Financial and Oak Hill
Financial are hereinafter sometimes referred to as the "Constituent
Corporations." At the Effective Time and following the Merger the separate
existence and corporate organization of Xxxxxxxx Financial shall cease.
2.02 Effective Time; Effective Date. The Merger shall be effective
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at 11:59 p.m., local Ohio time (the "Effective Time"), on (i) the day on which
this Agreement and the related Certificate of Merger have been filed in
accordance with the requirements of the laws of Ohio, or (ii) such later date as
may be specified in such Certificate of Merger (the "Effective Date").
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2.03. Name. The name of the Surviving Corporation shall be "Oak Hill
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Financial, Inc."
2.04. Charter. The Articles of Incorporation of Oak Hill Financial in
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effect at the Effective Time shall be the articles of incorporation of the
Surviving Corporation, until amended in accordance with law.
2.05. Directors. The directors of the Surviving Corporation shall be
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R. Xxxxxx Xxxxxxx, Xx.; 000 Xxxxxxxxxx, Xxxxxxxxxxx, Xxxx 00000; Xxxx X. Xxxxx,
0000 Xxxxxx Xxxx, Xxx Xxxx, Xxxx 00000; Xxxxx X. Xxxxxx, 000 X. Xxxxxxx Xxxxxx,
Xxx Xxxxxx, Xxxx 00000; Xxxx X. Xxxx, 0000 Xxxx Xxxxxx Xxxx, Xxxxxxx, Xxxx
00000; D. Xxxxx Xxxx, 000 X. Xxxxxxxx Xxxxxx, XxXxxxxx, Xxxx 00000; Xxxxxxx X.
Peace, 0000 Xxx Xxxx Xxxxx, Xxxx Xxxxxxx, Xxxx 00000; Xxxxxx X. Xxxxxxxx, 00
Xxxxx Xxxx Xxxxx, Xxxxxxxxxxx, Xxxx 00000; Xxxxxxx X. Xxxxxx, 00000 Xxxxxx Xxxxx
Xx., Xxxxxxxx, Xxxx 00000; H. Xxxxx Xxxxxxxxxx, 0000 Xxxxxx Xxxx, Xxxxxxxx, Xxxx
00000; Xxxx X. Xxxxxxxx, 00000 Xxxxxxxxxxxx Xx., Xxxxxxxx, Xxxx 00000; and
Xxxxxx X. Xxxx, 000 Xxxx Xxxxx Xxxxxx, Xxxxxx, Xxxx 00000, to serve until their
successors are duly elected and qualified in accordance with the Code of
Regulations of the Surviving Corporation and the laws of Ohio.
2.06. Regulations. The Code of Regulations of Oak Hill Financial in
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effect at the Effective Time shall be the regulations of the Surviving
Corporation, until amended in accordance with law.
2.07. Statutory Agent. The name and address of the agent upon whom any
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process, notice, or demand against any Constituent Corporation or the Surviving
Corporation may be served is H. Xxxxx Xxxxxxxxxx, 00 Xxxxx Xxxx Xxxxxx, Xxxxx
0000, Xxxxxxxx, Xxxx 00000.
2.08. Treatment of Shares.
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(a) All shares of Oak Hill Common that are issued and
outstanding immediately prior to the Effective Time shall continue to be issued
and outstanding shares of Oak Hill Common at and after the Effective Time and
shall not be affected by the Merger.
(b) Subject to the provisions of Section 2.11 hereof, by
virtue of the Merger, automatically and without any action on the part of the
holder thereof, each share of Xxxxxxxx Financial Common issued and outstanding
at the Effective Time (other than treasury shares, if any, which shall be
cancelled, and any shares as to which statutory dissenters' rights are properly
sought, which shall be treated as provided in subparagraph (c) of this Section
2.08) shall become and be converted into, at the election of the holder as
provided in and subject to the limitations set forth in this Agreement, either
(i) the right to receive $23.75 in cash without interest (the "Cash
Consideration"), or (ii) the number of shares (the "Exchange Ratio") of Oak Hill
Common equal to $23.75 divided by the Average Closing Price rounded to the
nearest ten-thousandth (the "Stock Consideration"). The Cash Consideration and
the Stock Consideration are sometimes referred to herein collectively as the
"Consideration."
If, between the date of this Agreement and the Effective Time,
the outstanding shares of Oak Hill Common shall have been changed into a
different number of shares or into a different class by reason of any stock
dividend, subdivision, reclassification, recapitalization, split, combination or
exchange of shares, the Exchange Ratio shall be adjusted appropriately to
provide the holders of Xxxxxxxx Financial Common the same economic effect as
contemplated by this Agreement prior to such event.
(c) Each outstanding share of Xxxxxxxx Financial Common held
by a person who has demanded and perfected a right to relief as a dissenting
stockholder under Section 3-202 of the Maryland General Corporation Law (the
"Dissenters' Rights Law") and who has not effectively withdrawn or lost such
right ("Dissenting Shares") shall not be converted into or represent a right to
receive the Consideration pursuant to subsection 2.08(b) hereof, but the holder
thereof shall be entitled only to such rights as are granted by the Dissenters'
Rights Law. Each holder of Dissenting Shares who becomes entitled to relief as a
dissenting stockholder under the Dissenters' Rights Law with respect to such
holder's shares of Xxxxxxxx Financial Common shall receive payment therefor from
Oak Hill Financial in accordance with the provisions of the Dissenters' Rights
Law. If any holder of Xxxxxxxx Financial Common who demands relief as a
dissenting stockholder under the Dissenters' Rights Law with respect to such
holder's shares of Xxxxxxxx Financial
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Common shall effectively withdraw or lose (through failure to perfect or
otherwise), the right to such relief, each share of Xxxxxxxx Financial Common
held by such holder shall automatically be converted into the right to receive
the Consideration.
(d) No Xxxxxxxx Financial stock options shall be assumed by
Oak Hill Financial. At the Effective Time, each option to acquire shares of
Xxxxxxxx Financial Common (a "Xxxxxxxx Financial Option") granted pursuant to
Xxxxxxxx Financial's 2001 Stock-Based Incentive Plan (the "Xxxxxxxx Financial
Option Plan") that is then outstanding and unexercised, whether or not then
vested, shall be canceled, and in lieu thereof the holders of such options shall
be paid in cash an amount equal to the product of (i) the number of shares of
Xxxxxxxx Financial Common subject to such option at the Effective Time and (ii)
the amount by which the Cash Consideration exceeds the exercise price per share
of such option, net of any cash which must be withheld under federal and state
income and employment tax requirements. In the event that the exercise price of
a Xxxxxxxx Financial Option is greater than the Cash Consideration, then at the
Effective Time such Xxxxxxxx Financial Option shall be canceled without any
payment made in exchange therefor. At the Effective Time the Xxxxxxxx Financial
Option Plan shall be deemed terminated. From the date of execution of this
Agreement, Xxxxxxxx Financial will use its best efforts to not permit the
exercise of Xxxxxxxx Financial Options in transactions other than transactions
to which Oak Hill Financial has consented.
(e) At the Effective Time, each share of restricted stock
outstanding as of the Effective Time and issued pursuant to Xxxxxxxx Financial's
2001 Stock-Based Incentive Plan, to the extent not already vested, shall vest
and shall represent a right to receive the same rights provided to other holders
of Xxxxxxxx Financial Common pursuant to subparagraph (b) of this Section 2.08.
2.09. Effect of the Merger.
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(a) At the Effective Time, the effect of the Merger shall be
as provided by the applicable provisions of the laws of Ohio. Without limiting
the generality of the foregoing, and subject thereto, at the Effective Time, the
separate existence of Xxxxxxxx Financial shall cease and all assets and property
(real, personal, and mixed, tangible and intangible, choses in action, rights,
and credits) then owned by each Constituent Corporation, or which would inure to
either of them, shall immediately, by operation of law and without any
conveyance, transfer, or further action, become the assets and property of the
Surviving Corporation. All rights and obligations of the Constituent
Corporations shall remain unimpaired and the Surviving Corporation shall succeed
to all such rights and obligations.
(b) From time to time, as and when requested by the Surviving
Corporation or by its successors, the officers and directors of Xxxxxxxx
Financial in office at the Effective Time shall execute and deliver such
instruments and shall take or cause to be taken such further or other action as
shall be necessary in order to vest or perfect in the Surviving Corporation, or
to confirm of record or otherwise, title to, and possession of, all the assets,
property, interests, rights, privileges, immunities, powers, franchises, and
authority of Xxxxxxxx Financial and otherwise to carry out the purposes of this
Agreement.
2.10. Offices. The principal executive offices of the Surviving
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Corporation shall be located at 00000 Xxxxx Xxxxx 00, Xxxxxxx, Xxxx 00000.
2.11 Election Procedures. Oak Hill Financial will cause to be sent to
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all record holders of Xxxxxxxx Financial Common as of a record date fixed for
such purpose by Xxxxxxxx Financial, with the concurrence of Oak Hill Financial,
not later than 30 days prior to the expected Closing Date, and Oak Hill
Financial will use its best efforts to cause to be sent to each holder of
Xxxxxxxx Financial Common who first becomes a holder after such date, an
election form in such form as Oak Hill Financial and Xxxxxxxx Financial shall
mutually agree (the "Election Form") and other appropriate materials to effect
the surrender of certificates representing shares of Xxxxxxxx Financial Common
in exchange for either cash or stock as provided herein. The Election Form will
allow each such holder (i) to elect to receive the Stock Consideration with
respect to all of such holder's shares of Xxxxxxxx Financial Common, (ii) to
elect to receive the Cash Consideration with respect to all of such holder's
shares of Xxxxxxxx Financial Common, (iii) to elect to receive the Cash
Consideration with respect to some of such holder's shares of Xxxxxxxx Financial
Common and the Stock Consideration with respect to such holder's remaining
shares of Xxxxxxxx Financial Common or (iv) to indicate no election (the
"No-Election Shares"). Shares of Xxxxxxxx Financial Common as to which an
election to receive the Stock Consideration has been made, including pursuant to
a mixed election, are referred to herein as "Stock Election Shares." Shares of
Xxxxxxxx Financial Common as to which an election to receive the Cash
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Consideration has been made, including pursuant to a mixed election, are
referred to herein as "Cash Election Shares." As of the Election Deadline, as
defined below, any shares of Xxxxxxxx Financial Common with respect to which the
holder thereof shall not have made such election by submission to Registrar and
Transfer Co., as Exchange Agent (the "Exchange Agent"), of an effective,
properly completed Election Form shall be deemed to be No-Election Shares.
Any election to receive the Stock Consideration or the Cash
Consideration shall have been properly made only if the Exchange Agent shall
have received by 5:00 p.m., New Jersey time, three business days prior to the
Closing Date (or such other time as Oak Hill Financial and Xxxxxxxx Financial
may mutually agree) (the "Election Deadline"), a properly completed Election
Form. An Election Form will be properly completed only if accompanied by
certificates representing all shares of Xxxxxxxx Financial covered thereby (or
customary affidavits and, if required by Oak Hill Financial, indemnification
regarding the loss or destruction of such certificates or the guaranteed
delivery of such certificates) together with all other documents required by the
Election Form with respect to such shares. Any Election Form may be revoked or
changed by the person submitting such Election Form to the Exchange Agent by
written notice to the Exchange Agent if, but only if, such notice is received by
the Exchange Agent at or prior to the Election Deadline. All elections shall
automatically be revoked if the Merger is abandoned for any reason, whereupon
all certificates for shares of Xxxxxxxx Financial Common to which each such
election relates shall be promptly returned to the holder submitting the same to
the Exchange Agent. The Exchange Agent shall have reasonable discretion to
determine when any election, modification or revocation is received and whether
any such election, modification or revocation has been properly made, consistent
with the duty of the Exchange Agent to give effect to such elections,
modifications or revocations to the extent possible.
For the purpose of this Section 2.11, the number of shares of Xxxxxxxx
Financial held of record by each holder of Xxxxxxxx Financial immediately prior
to the Effective Time shall be determined with reference to a complete list of
the holders of Xxxxxxxx Financial prepared and certified as correctly reflecting
its stock records by Xxxxxxxx Financial as of the Election Deadline (the "Stock
List"). Each entry on the Stock List shall be presumed to represent a different
holder of Xxxxxxxx Financial unless it appears from the face of the Stock List
that several entries are only variations in the spelling or presentation of the
same name or names. Any questions concerning the Stock List shall be determined
by the Exchange Agent, the decision of which shall be final and binding on all
parties involved.
Holders of record of shares of Xxxxxxxx Financial Common who hold such
shares as nominees, trustees or in other representative capacities (a
"Representative") may submit multiple Election Forms, provided that such
Representative certifies that each such Election Form covers all of the shares
of Xxxxxxxx Financial Common held by that Representative for a particular
beneficial owner.
Oak Hill Financial may establish such other rules and procedures
relating to the elections herein provided, not inconsistent with the terms of
this Agreement, as may be necessary to facilitate the prompt and orderly receipt
and processing of elections and the prompt distribution of the Stock
Consideration and the Cash Consideration to which the former holders of Xxxxxxxx
Financial become entitled by virtue of this Agreement, including procedures
governing the issuance and delivery of certificates of Oak Hill Common into
which shares of Xxxxxxxx Financial Common are converted in the Merger and the
payment for Xxxxxxxx Financial Common converted into the right to receive the
Cash Consideration in the Merger, provided that no such rule or procedure shall
have the effect of impairing the continuity of proprietary interest needed to
qualify the Merger as a tax-free reorganization under the Code.
No transfer taxes shall be payable by any shareholder of Xxxxxxxx
Financial with respect to the issuance of certificates for Oak Hill Common and
no expenses shall be imposed on any shareholder of Xxxxxxxx Financial in
connection with the conversion of shares of Xxxxxxxx Financial Common into cash
or shares of Oak Hill Common and the delivery of such cash or shares to the
former holder of Xxxxxxxx Financial Common entitled thereto, except that (i) if
any certificate of Oak Hill Common is to be issued in a name other than that in
which a certificate or certificates for shares of Xxxxxxxx Financial surrendered
shall have been registered, it shall be a condition to such issuance that the
person requesting such issuance shall pay to Oak Hill Financial any transfer
taxes payable by reason thereof or of any prior transfer of such surrendered
certificate or certificates or establish to the satisfaction of Oak Hill
Financial that such
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taxes have been paid or are not payable, and (ii) nothing herein shall relieve a
shareholder of Xxxxxxxx Financial Common of any expenses associated with
surrendering such holder's certificates of Xxxxxxxx Financial Common to the
Exchange Agent.
2.12. Allocation of Shares and Cash. The parties hereto intend for the
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Merger to qualify as a reorganization within the meaning of Sections 368(a) and
related sections of the Code.
As soon as practicable but in any event within three business days
after the Election Deadline, the Exchange Agent shall effectuate the allocation
among holders of Xxxxxxxx Financial Common of rights to receive the Stock
Consideration and the Cash Consideration as follows:
(a) If the number of Stock Election Shares is less than
325,055 (the amount by which 325,055 exceeds the number of Stock Election Shares
being referred to herein as the "Shortfall Number"), then
(i) all Stock Election Shares will be converted
into the right to receive the Stock Consideration,
(ii) if the Shortfall Number is less than or equal
to the number of No-Election Shares, then all Cash Election Shares
shall be converted into the right to receive the Cash Consideration and
each holder of No-Election Shares shall receive (A) the number of
shares of Oak Hill Common equal to the product obtained by multiplying
(1) the number of No-Election shares held by such holder by (2) the
Exchange Ratio by (3) a fraction the numerator of which is the
Shortfall Number and the denominator of which is the total number of
No-Election Shares (the "No-Election Proration Factor") and (B) cash in
an amount equal to the product obtained by multiplying (1) the number
of No-Election Shares held by such holder by (2) the Cash Consideration
by (3) one minus the No-Election Proration Factor, and
(iii) if the Shortfall Number exceeds the number of
No-Election Shares, then all No-Election Shares shall be converted into
the right to receive the Stock Consideration, and each holder of Cash
Election Shares shall receive (1) the number of shares of Oak Hill
Common equal to the product obtained by multiplying (x) the number of
Cash Election Shares held by such holder by (y) the Exchange Ratio by
(z) a fraction the numerator of which is the amount by which the
Shortfall Number exceeds the number of No-Election Shares and the
denominator of which is the total number of Cash Election Shares (the
"Cash Proration Factor") and (B) cash in an amount equal to the product
obtained by multiplying (x) the number of Cash Election Shares held by
such holder by (y) the Cash Consideration by (z) one minus the Cash
Proration Factor.
(b) If the number of Stock Election Shares is greater than
338,057, then
(i) all Cash Election Shares will be converted into
the right to receive the Cash Consideration,
(ii) all No-Election Shares will be converted into
the right to receive the Cash Consideration, and
(iii) each holder of Stock Election Shares will be
entitled to receive (A) the number of shares of Oak Hill Common equal
to the product obtained by multiplying (1) the number of Stock Election
Shares held by such holder by (2) the Exchange Ratio by (3) a fraction,
the numerator of which is 338,057 and the denominator of which is the
number of Stock Election Shares (the "Stock Proration Factor") and (B)
cash in an amount equal to the product obtained by multiplying (1) the
number of Stock Election Shares held by such holder by (2) the Cash
Consideration by (3) one minus the Stock Proration Factor.
(c) If the number of Stock Election Shares is equal to or
greater than 325,055 and less than or equal to 338,057, then
8
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As Executed
(i) all Stock Election Shares will be converted
into the right to receive the Stock Consideration,
(ii) all Cash Election Shares will be converted into
the right to receive the Cash Consideration, and
(iii) all No-Election Shares will be converted into
the right to receive the Cash Consideration.
For purposes of the foregoing calculations, Dissenters' Shares shall be
deemed to be Cash Election Shares.
2.13. Distribution Procedures.
-----------------------
(a) As soon as practicable after the Effective Time and the
completion of the allocation procedure described above, Oak Hill Financial shall
cause the Exchange Agent to distribute the Stock Consideration and the Cash
Consideration as provided herein (the "Distribution Date"). Not later than the
Distribution Date, Oak Hill Financial will deliver to the Exchange Agent the
number of shares of Oak Hill Common issuable and the aggregate Cash
Consideration payable in the Merger in order for the Exchange Agent to make such
distribution.
(b) Appropriate transmittal materials ("Letter of
Transmittal") in a form satisfactory to Oak Hill Financial and Xxxxxxxx
Financial shall be mailed as soon as practicable after the Effective Time to
each holder of record of Xxxxxxxx Financial Common as of the Effective Time who
did not previously submit a completed Election Form. A Letter of Transmittal
will be deemed properly completed only if accompanied by certificates
representing all shares of Xxxxxxxx Financial Common to be exchanged thereby.
(c) Neither Oak Hill Financial, the Surviving Corporation, nor
the Exchange Agent, shall be obligated to deliver certificates for Oak Hill
Common or cash to a former shareholder of Xxxxxxxx Financial until the later of
the Distribution Date or the date on which such former shareholder surrenders
his certificate or certificates representing shares of Xxxxxxxx Financial or, in
default thereof, an appropriate affidavit of loss and indemnity agreement and
bond as may be required by Oak Hill Financial. Until so surrendered, each
outstanding certificate representing shares of Xxxxxxxx Financial which have
been converted into shares of Oak Hill Common shall be deemed for all corporate
purposes (except the payment of dividends or other distributions) to evidence
ownership of the number of whole shares of Oak Hill Common into which the shares
of Xxxxxxxx Financial represented thereby shall have been converted. Adoption of
this Agreement by the shareholders of Xxxxxxxx Financial shall constitute
ratification of the appointment of such Exchange Agent.
(d) No dividends or other distributions payable to holders of
record of Oak Hill Common after the Effective Date shall be paid to a holder of
Xxxxxxxx Financial whose shares have been converted into Oak Hill Common until
the latter of the Distribution Date or the date such holder surrenders his
certificates formerly representing shares of Xxxxxxxx Financial. Promptly upon
surrender of such outstanding certificates there shall be paid to the holder of
the certificates for Oak Hill Common issued in exchange therefor the amount of
dividends and other distributions, if any, which theretofore became payable with
respect to such full shares of Oak Hill Common, but which have not theretofore
been paid on such stock. No interest shall be payable with respect to the
payment of any dividends or other distributions. All such dividends or other
distributions (including cash payable in lieu of any fractional share of Oak
Hill Common) unclaimed at the end of one year from the Effective Date shall be
repaid by the Exchange Agent to Oak Hill Financial, and thereafter the holders
of such outstanding certificates for Xxxxxxxx Financial shall look, subject to
applicable escheat, unclaimed funds and other laws, as general creditors only to
Oak Hill Financial for payment thereof.
(e) The stock transfer books of Xxxxxxxx Financial shall be
closed immediately upon the Effective Time.
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As Executed
(f) Oak Hill Financial is empowered to adopt additional
reasonable rules and regulations with respect to the matters referred to in this
Section 2.13 not inconsistent with the provisions of this Agreement.
2.14. Fractional Shares. No fractional shares of Oak Hill Common shall
-----------------
be issued. Each former holder of Xxxxxxxx Financial who would otherwise be
entitled to receive a fractional share of Oak Hill Common shall receive from the
Exchange Agent cash in an amount equal to the product resulting from multiplying
such fraction by $23.75. Such payment with respect to fractional shares is
intended to avoid the expense and inconvenience of issuing fractional shares and
to provide a mechanical rounding off of shares, and is not a separately
bargained for consideration. On the Effective Date, Oak Hill Financial shall
deliver cash sufficient to permit the payment in respect of such fractional
shares to the Exchange Agent for distribution in accordance with this Section
2.14. No interest shall be payable with respect to such cash payment.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF XXXXXXXX FINANCIAL
----------------------------------------------------
Xxxxxxxx Financial represents and warrants to Oak Hill Financial that,
except as set forth in the Xxxxxxxx Financial Disclosure Memorandum:
3.01 Organization and Authority. Xxxxxxxx Financial is a corporation
--------------------------
duly organized, validly existing, and in good standing under the laws of
Maryland, is registered with the Office of Thrift Supervision as a savings and
loan holding company, is duly qualified to do business and is in good standing
in all jurisdictions where its ownership or leasing of property or the conduct
of its business requires it to be so qualified, and has the corporate power and
authority to own its properties and assets, to carry on its business as it is
presently being conducted, and, subject to the approval of its stockholders, and
to the filing of all requisite regulatory applications and notices and the
receipt of all requisite regulatory approvals, to enter into and carry out its
obligations under this Agreement.
3.02 Capitalization. The authorized capital stock of Xxxxxxxx
--------------
Financial consists of 4,000,000 shares of Xxxxxxxx Financial Common, of which
650,110 shares were issued and outstanding as of the date of this Agreement, and
1,000,000 shares of preferred stock with a par value of one cent ($.01), of
which there are no shares issued and outstanding as of the date of this
Agreement. All of the outstanding shares of Xxxxxxxx Financial Common are duly
authorized, validly issued, fully paid and nonassessable. Other than Xxxxxxxx
Financial Options to acquire 58,187 shares of Xxxxxxxx Financial Common, there
are no existing options, warrants, or commitments of any kind which might
require the issuance by Xxxxxxxx Financial of any additional shares of Xxxxxxxx
Financial Common or other equity securities of Xxxxxxxx Financial.
3.03 Subsidiaries. The Xxxxxxxx Financial Disclosure Memorandum
------------
lists all corporations in which Xxxxxxxx Federal owns, directly or indirectly,
five percent or more of any class of capital stock of any corporation as of the
date of this Agreement, and indicates, with respect to the equity securities of
each such corporation as of such date, the number of shares of each class
authorized, the number of shares outstanding, and the number of shares owned or
controlled directly or indirectly by Xxxxxxxx Financial. There are no options,
contracts, commitments, understandings, or arrangements by which any subsidiary
of Xxxxxxxx Financial is bound to issue additional shares of its equity
securities. Xxxxxxxx Federal is a member of the Federal Home Loan Bank System
and its deposits are insured up to the applicable limits by the SAIF.
3.04 Directors, Officers, and Principal Stockholders. No person is
-------------------------------------------------
known by Xxxxxxxx Financial to own more than 5% of the outstanding shares of
Xxxxxxxx Financial Common.
3.05 Authorization. The execution, delivery, and performance of this
-------------
Agreement by Xxxxxxxx Financial, and the consummation of the transactions
contemplated hereby have been duly approved by the Board of Directors of
Xxxxxxxx Financial, subject to the adoption of this Agreement by the
stockholders of Xxxxxxxx Financial.
3.06 Absence of Defaults. Neither the execution and delivery of this
-------------------
Agreement, nor the consummation of the Merger, nor compliance by Xxxxxxxx
Financial with any provisions hereof will violate any provisions of the articles
or incorporation or bylaws, or other charter documents of Xxxxxxxx Financial or
result in a breach or termination of, or
10
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As Executed
accelerate the performance required by, any note, bond, mortgage, lease,
agreement, or other instrument to which Xxxxxxxx Financial is a party or by
which Xxxxxxxx Financial may be bound, except for such violations or breaches
that would not, individually or in the aggregate, have a Material Adverse Effect
on Xxxxxxxx Financial.
3.07 Financial Statements. Xxxxxxxx Financial has delivered the
--------------------
Audited Financial Statements to Oak Hill Financial. The Audited Financial
Statements fairly present the financial position, results of operations, and
cash flows of Xxxxxxxx Financial at the dates shown and for the periods
indicated in conformity with generally accepted accounting principles applied on
a consistent basis. There are no obligations or liabilities, whether absolute,
accrued, or contingent (including, without limiting the generality of the
foregoing, liabilities for taxes), of Xxxxxxxx Financial which are required in
conformity with generally accepted accounting principles to be reflected or
disclosed in the Audited Financial Statements which have not been or will not be
so reflected or disclosed.
3.08 Title to Properties.
-------------------
(a) Xxxxxxxx Financial owns no Real Property, provided
however, Xxxxxxxx Financial has good and marketable title to the Real Property
listed as owned by it in the Xxxxxxxx Financial Disclosure Memorandum and valid
leasehold interests in all of the Real Property listed as leased by it in the
Xxxxxxxx Financial Disclosure Memorandum, free and clear of any liens and
encumbrances except taxes and assessments not delinquent and utility and other
easements that do not interfere with the use of the property for the business
being conducted thereon. The Real Property and the present use thereof by
Xxxxxxxx Financial do not violate any local zoning or similar land use laws, any
governmental regulations, or any restrictive covenants. To the Knowledge of
Xxxxxxxx Financial, (i) the Real Property and the use thereof by Xxxxxxxx
Financial do not encroach upon any property owned by any other person, and (ii)
no property owned by any other person encroaches upon any of the Real Property.
The Real Property is not subject to any easements, restrictions, set backs,
encroachments, or other limitations except utility and other easements that do
not interfere with the use of the Real Property for the business then being
conducted thereon. The Real Property is not located in any flood hazard area.
(b) Each item of the personal property owned by Xxxxxxxx
Financial, including without limitation all contractual rights and assets
reflected in the Audited Financial Statements or acquired after the date hereof
except for assets sold or otherwise disposed of in the ordinary course of
business since such date or assets which, either individually or in the
aggregate, are not material to the operations or financial condition of Xxxxxxxx
Financial), is owned by Xxxxxxxx Financial, free and clear of any lien or
encumbrance, except for assets securing loans from the Federal Home Loan Bank of
Cincinnati and assets pledged for public deposits.
3.09 Absence of Undisclosed Liabilities. Except to the extent
--------------------------------------
reflected or reserved against on the consolidated balance sheet of Xxxxxxxx
Financial as of June 30, 2004 as included in Xxxxxxxx Financial's Quarterly
Report on Form 10-QSB for the period ended June 30, 2004, Xxxxxxxx Financial has
no liabilities, whether absolute, accrued, contingent, or otherwise, due or to
become due, including without limitation any liabilities as guarantor under any
guaranty or liabilities for taxes, except liabilities and taxes incurred in the
ordinary course of business, which have had or would reasonably be expected to
have a Material Adverse Effect on Xxxxxxxx Financial.
3.10 Absence of Certain Changes. Since June 30, 2004, Xxxxxxxx
----------------------------
Financial has not:
(a) made or permitted to be made any changes in its capital or
corporate structure, certificate or articles of incorporation, regulations,
bylaws, or other incorporation documents;
(b) merged with any other corporation or bank, or permitted
any other corporation or bank to merge into or consolidate with it or it
subsidiary; acquired control over any other firm, bank, corporation, or
organization; or created any subsidiaries;
(c) issued, sold, delivered, or agreed to issue, sell, or
deliver any additional shares of its capital stock or any options, warrants, or
rights to acquire any such capital stock, or securities convertible into or
exchangeable for such capital stock, except for capital stock issued pursuant to
the exercise of stock options previously issued, in accordance with their
respective terms;
11
12
As Executed
(d) purchased, sold, transferred, or otherwise acquired or
disposed of, or agreed to purchase, sell, transfer, acquire, or dispose of, any
capital stock or other securities of any kind, or options or other rights to
acquire any such securities, of any other entity (including, but not limited to,
any such transactions involving either Xxxxxxxx Financial or any of its
subsidiaries with respect to the capital stock or other securities of Xxxxxxxx
Financial or its subsidiaries), other than in the ordinary course of business;
(e) incurred any indebtedness, obligations, or liabilities,
whether absolute, accrued, contingent, or otherwise, including, without
limitation, liabilities as guarantor under any guaranty, other than
indebtedness, obligations, and liabilities incurred in the ordinary course of
its business or incurred under the contracts and commitments referred to in
Section 3.18 hereof;
(f) issued as borrower any promissory notes, guarantees, or
other evidences of indebtedness, other than in the ordinary course of business;
(g) forgiven or cancelled any indebtedness or contractual
obligation, other than in the ordinary course of business;
(h) mortgaged, pledged, or subjected to any lien or lease any
of its assets, tangible or intangible, or permitted or suffered any such asset
to be subjected to any lien or lease, other than in the ordinary course of
business;
(i) purchased, sold, transferred, liquidated, or otherwise
acquired or disposed of any assets or properties, or entered into any contract
for any such purchase, sale, transfer, liquidation, acquisition, or disposition,
other than in the ordinary course of business;
(j) entered into any lease of real or personal property, other
than in the ordinary course of business;
(k) declared, paid, made, or set apart any sum or property
for, any dividend or other distribution, or otherwise paid or transferred any
funds or property to its stockholders, except for regularly scheduled dividends;
(l) increased the wages, salaries, compensation, pension or
other fringe benefits, or perquisites payable to any executive officer after
June 30, 2004, or granted any severance or termination pay, or entered into any
contract to make or grant any severance or termination pay, or entered into any
employment or consulting contract which is not terminable by Xxxxxxxx Financial,
without cause and without penalty, upon notice of 30 days or less;
(m) made any loans or loan commitments, other than in the
ordinary course of business, to any director, officer, or Principal Stockholder
(or any person or business entity controlled by or affiliated with such
director, officer, or Principal Stockholder);
(n) modified, altered, amended, terminated, or withdrawn from
participation in any Employee Benefit Plan or any other plan or benefit provided
to one or more employees, or paid or distributed any sum from any such plan
except to participants in the ordinary course of the operation of the plan, or
made any payment or contribution to any such plan except as required by the
terms of such plan or consistent with past practices, but, in any event, not to
exceed four percent (4%) of eligible salaries, in the aggregate, on an annual
basis;
(o) entered into any transaction involving the expenditure of
more than $25,000, other than in the ordinary course of business, except
pursuant to and in accordance with the terms of the contracts and commitments
referred to in Section 3.18 hereof;
(p) adopted any change in any accounting policy or method
unless required by accounting principles generally accepted in the United
States, provided however that if a change in accounting policy or method is
required by accounting principles generally accepted in the United States,
Xxxxxxxx Financial shall give written advance notice of such change of Oak Hill
Financial;
12
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As Executed
(q) revalued any asset or adjusted any reserve other than in
the ordinary course of business;
(r) failed to keep in full force and effect insurance and
bonds at least equal in amount and scope of coverage to the insurance and bonds
carried on June 30, 2004;
(s) suffered any Material Adverse Effect;
(t) suffered any damage, destruction, or loss (whether or not
covered by insurance) which, individually or in the aggregate, has had a
Material Adverse Effect;
(u) suffered any strike, work stoppage, slow-down, or other
labor disturbance; or
(v) suffered any loss of employees or customers which has had
a Material Adverse Effect.
3.11 Taxes and Tax Returns. Each of Xxxxxxxx Financial and its
-----------------------
subsidiaries has duly filed all federal, state, foreign and local information
returns and Tax Returns required to be filed by it on or prior to the date of
this Agreement (all such returns being accurate and complete) and has duly paid
or made adequate provision according to generally accepted accounting principles
for the payment of all Taxes that have been incurred or are due or claimed to be
due from it by federal, state, foreign or local taxing authorities. The federal
income Tax Returns of Xxxxxxxx Financial and its subsidiaries have been filed
for all years to and including 2002 and any liability with respect thereto has
been satisfied. There are no material disputes pending, or claims asserted, for
Taxes or assessments upon Xxxxxxxx Financial of its subsidiaries. Xxxxxxxx
Financial and its subsidiaries have not waived any statute of limitations in
respect of Taxes or agreed to an extension of time with respect to a Tax
assessment or deficiency. There are no liens with respect to Taxes upon any of
the properties or assets of Xxxxxxxx Financial or its subsidiaries, tangible or
intangible. Neither Xxxxxxxx Financial nor any of its subsidiaries is a party to
or is bound by any Tax sharing, allocation or indemnification agreement or
arrangement (other than such an agreement or arrangement exclusively between or
among Xxxxxxxx Financial and its subsidiaries). Within the past five years,
neither Xxxxxxxx Financial nor any of its subsidiaries has been a "distributing
corporation" or a "controlled corporation" in a distribution intended to qualify
under Section 355(a) of the Code. There is and will be no disallowance of a
deduction under Section 162(m) of the Code on any Tax Return filed or to be
filed by Xxxxxxxx Financial or its subsidiaries for employee remuneration of any
amount paid or payable by Xxxxxxxx Financial or any of its subsidiaries under
any contract, plan, program or arrangement or understanding. Xxxxxxxx Financial
and its subsidiaries have no net operating loses or other tax attributes
presently subject to limitations under the Code or regulations thereunder.
3.12 Labor Matters. Xxxxxxxx Financial is not a party to any
--------------
collective bargaining or other union agreement with any of its employees, or is
involved in any labor dispute.
3.13 Litigation. There is no action, suit, proceeding, or claim by
----------
any governmental agency or other person or entity nor any investigation by any
governmental agency pending or, to the Knowledge of Xxxxxxxx Financial,
threatened against (i) Xxxxxxxx Financial, (ii) any subsidiary of Xxxxxxxx
Federal, (iii) the assets, business, or goodwill of Xxxxxxxx Financial or any of
its subsidiaries, or (iv) any director, officer or Principal Stockholder of
Xxxxxxxx Financial or any of its subsidiaries, in relation to the business of
Xxxxxxxx Financial or any of its subsidiaries, or any such person's capacity as
a director, officer or Principal Stockholder of Xxxxxxxx Financial or any of its
subsidiaries. Neither Xxxxxxxx Financial nor any of its subsidiaries is subject
to any supervisory agreement, consent order or decree, cease and desist order,
or other restriction on their business or assets.
3.14 Environmental Matters.
---------------------
(a) To the Knowledge of Xxxxxxxx Financial, Xxxxxxxx Financial
and its subsidiaries are and have been at all times in substantial compliance
with all applicable Environmental Laws and neither Xxxxxxxx Financial nor any of
its subsidiaries has engaged in any activity resulting in a material violation
of any applicable Environmental Law. No orders, hearings, actions, or other
proceedings by or before any court or governmental agency in which Xxxxxxxx
Financial or any of its subsidiaries is a party are pending or, to the Knowledge
of Xxxxxxxx Financial, threatened in connection with any alleged violation of
any applicable Environmental Law (i) by Xxxxxxxx Financial or any of its
13
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As Executed
subsidiaries or (ii) in relation to any part of the Real Property and Xxxxxxxx
Financial has no Knowledge of any investigations or inquiries with respect to
any such alleged violation. No claims have been made or, to the Knowledge of
Xxxxxxxx Financial, threatened at any time by any third party against Xxxxxxxx
Financial or any of its subsidiaries relating to damage, contribution, cost
recovery, compensation, loss, or injury resulting from any Hazardous Substance.
To the Knowledge of Xxxxxxxx Financial, neither Xxxxxxxx Financial nor any of
its subsidiaries has caused or permitted any Hazardous Substance to be
integrated into the Real Property or any component thereof in such manner or
quantity as may reasonably be expected to or in fact would pose a threat to
human health or the value of the Real Property. None of the Real Property has
been used by Xxxxxxxx Financial or any of its subsidiaries for the storage or
disposal of Hazardous Substances nor to the Knowledge of Xxxxxxxx Financial, is
any of the Real Property contaminated by any Hazardous Substance. To the
Knowledge of Xxxxxxxx Financial, none of the Real Property has in the past
contained or presently contains any underground storage tanks. To the Knowledge
of Xxxxxxxx Financial, neither Xxxxxxxx Financial nor any of its subsidiaries
has any interest, direct or indirect, in any property owned by a third party
which has been contaminated by Hazardous Substances (excluding any property as
to which the sole interest of Xxxxxxxx Financial or any of its subsidiaries is
that of a lien holder or mortgagee, but including any property as to which title
has been taken by Xxxxxxxx Financial or any of its subsidiaries pursuant to
mortgage foreclosure or similar proceeding and any property as to which Xxxxxxxx
Financial or any of its subsidiaries has participated in the financial
management to a degree sufficient to influence the property's treatment of
Hazardous Substances).
(b) To the Knowledge of Xxxxxxxx Financial, the
representations set forth in paragraph (a) above are also true and correct in
relation to any and all real property owned or leased by it or any of its
subsidiaries at any time prior to the date of this Agreement, together with any
improvements located thereon.
3.15 Community Reinvestment Act Compliance. Xxxxxxxx Federal is in
--------------------------------------
material compliance with the applicable provisions of the CRA and the
regulations promulgated thereunder, and currently has a CRA rating of
satisfactory or better from the Office of Thrift Supervision. Xxxxxxxx Financial
knows of no fact or circumstance or set of facts or circumstances which would
cause Xxxxxxxx Financial to fail to comply with such provisions or to cause the
CRA rating of Xxxxxxxx Federal to fall below satisfactory.
3.16 Compliance with Laws. Xxxxxxxx Financial and its subsidiaries
--------------------
hold all permits, licenses, certificates of authority, orders, and approvals of,
and have made all filings, applications, and registrations with, all
governmental or regulatory bodies that are required in order to permit them to
carry on their respective businesses as they are presently conducted. To the
Knowledge of Xxxxxxxx Financial, Xxxxxxxx Financial and its subsidiaries have
conducted their businesses so as to comply in all material respects with all
applicable statutes, regulations, rules, and orders.
3.17 Information Provided by Xxxxxxxx Financial. None of the
-----------------------------------------------
information supplied or to be supplied by Xxxxxxxx Financial for inclusion in
the Registration Statement, the Proxy Statement, the application for approval,
or any other document to be filed with the Federal Reserve Board, the Division
of Financial Institutions, the SEC, or any other federal or state regulatory
authority in connection with the transactions contemplated herein or in this
Agreement is or will be false or misleading with respect to any material fact,
or omits or will omit any material fact necessary in order to make the
statements therein not misleading.
3.18 Material Contracts.
------------------
(a) Xxxxxxxx Financial has no written or oral agreements,
leases, and other obligations and commitments of the following types, to which
either Xxxxxxxx Financial is a party, by which Xxxxxxxx Financial or any
subsidiary or any of their property is bound, or which has been authorized by
Xxxxxxxx Financial (the "Material Contracts"):
(i) promissory notes, guaranties, mortgages, security
agreements, or other evidences of indebtedness of Xxxxxxxx Financial;
(ii) partnership or joint venture agreements;
(iii) employment, bonus, compensation, severance, or
consulting agreements;
14
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As Executed
(iv) collective bargaining agreements;
(v) Employee Benefit Plans and any other plans, benefits,
programs of benefits, or deferred compensation arrangements for the benefit of
directors, employees, or former or retired employees;
(vi) agreements or commitments for sale (other than in the
ordinary course of business) of assets exceeding $50,000 in the aggregate;
(vii) agreements or commitments for capital expenditures in excess
of $50,000 in the aggregate;
(viii) agreements or other documents creating liens or security
interests relating to any real or personal property owned, rented, or leased by
Xxxxxxxx Financial and used in connection with the business of such entity;
(ix) leases of, commitments to lease, and other agreements
relating to the lease or rental of, real or personal property by Xxxxxxxx
Financial and used in connection with the business of such entity with annual
payments in excess of $25,000;
(x) all policies of insurance and fidelity bonds of Xxxxxxxx
Financial;
(xi) all direct or indirect loans or guaranties of loans to any
director, officer, or Principal Stockholder of Xxxxxxxx Financial or their
spouses or children or any partnership, corporation, or other entity in which
any such director, officer, or Principal Stockholder or their spouses or
children, have a significant (ten percent or more) interest; and
(xii) all other contracts and commitments not made in the ordinary
course of business.
(b) The Xxxxxxxx Financial Disclosure Memorandum includes complete
and correct copies of all written agreements, leases and commitments, except
loan commitments less than $500,000, together with all amendments thereto, that
constitute the Material Contracts (or Xxxxxxxx Financial has previously provided
copies thereof to Oak Hill Financial) and includes a complete and correct
written description of all oral agreements that constitute Material Contracts.
(c) As of and through the date of this Agreement: (i) each Material
Contract is valid and subsisting and in full force and effect in all material
respects; (ii) Xxxxxxxx Financial has in all material respects performed all
obligations required to be performed by it to date under the Material Contracts;
and (iii) no event or condition exists which constitutes or, after notice or
lapse of time, would constitute, a material default on the part of Xxxxxxxx
Financial under any Material Contract.
3.19 Employee Benefit Plans.
----------------------
(a) All Employee Benefit Plans maintained by Xxxxxxxx
Financial or any subsidiary are listed on the Xxxxxxxx Financial Disclosure
Memorandum and comply in all material respects with the requirements of ERISA
and the Code and all such plans have been administered to date in compliance
with the requirements of ERISA, the Code, and subsequent legislation regulating
ERISA plans. If required, shares of Xxxxxxxx Financial owned by any Employee
Benefit Plan have been registered pursuant to applicable securities law. Each of
such plans that is an employee pension benefit plan within the meaning of
Section 3(2) of ERISA that is intended to be a qualified plan under Section
401(a) of the Code has been amended to comply in all material respects with
current law as required or the remedial amendment period for such amendment
under Section 401(b) of the Code has not expired and Xxxxxxxx Financial or a
subsidiary has obtained current favorable determination letters with respect to
all such plans. As of the date hereof, neither Xxxxxxxx Financial nor a
subsidiary has liability on account of any accumulated funding deficiency (as
defined in Section 412 of the Code) or on account of any failure to make
contributions to or pay benefits under any such plan nor is Xxxxxxxx Financial
or a subsidiary aware of any claim pending or threatened to be brought by any
party regarding such matters.
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As Executed
No prohibited transaction has occurred with respect to any such plan that would
result, directly or indirectly, in the imposition of any excise tax under
Section 4975 of the Code; nor has any reportable event under Section 4043 of
ERISA occurred with respect to any such plan. Neither Xxxxxxxx Financial nor a
subsidiary is a defendant in any lawsuit or criminal action concerning such
entity's conduct as a fiduciary, party-in-interest, or disqualified person with
respect to any plan, nor is either of them engaged in litigation or a continuing
controversy with, or, to the knowledge of Xxxxxxxx Financial or any subsidiary,
under investigation or examination by, the Department of Labor, Internal Revenue
Service, Justice Department, or Pension Benefit Guaranty Corporation involving
compliance with ERISA or the provisions of the Code relating to employee benefit
plans. All reporting and disclosure requirements of ERISA and the Code have been
met in all respects by all such plans. Neither Xxxxxxxx Financial nor any
subsidiary is required to contribute to an Employee Benefit Plan that is a
"multiemployer plan" within the meaning of Section 3(37) of ERISA. Xxxxxxxx
Federal and its subsidiaries have complied with all reporting and disclosure
obligations to all governmental entities and all participants and beneficiaries
with respect to each Employee Benefit Plan required by the terms of such
Employee Benefit Plan, any statutes, orders, rules or regulations, including but
not limited to ERISA, the Code and the Xxxxxxxx-Xxxxx Act of 2002, to the extent
that the failure to do so would have an adverse effect on the Company.
(b) Xxxxxxxx Financial has no Employee Benefit Plans or any
other benefit plans or programs currently in effect for employees, former
employees, and retired employees of Xxxxxxxx Financial or any subsidiary
including, without limitation, those providing any form of medical, health, and
dental insurance, severance pay and benefits continuation, relocation
assistance, vacation pay, tuition aid, and matching gifts for charitable
contributions to educational or cultural institutions, whether or not subject to
ERISA. If any plans are listed on the Xxxxxxxx Financial Disclosure Memorandum,
then the memorandum includes complete and correct copies of all such plans or
programs, including each trust or other agreement under which any trustee or
custodian holds funds or property of the plan and all current financial and
actuarial reports, all current reporting and disclosure documents and filings,
and currently effective Internal Revenue Service rulings or determination
letters in respect thereof, or copies of such material has been previously
provided to Oak Hill Financial. If any of the Employee Benefit Plans listed in
the Xxxxxxxx Financial Disclosure Memorandum has not been amended to comply with
the Tax Reform Act of 1986 and subsequent legislation, Xxxxxxxx Financial will
also deliver to Oak Hill Financial information and documentation regarding such
plan's operation during the remedial amendment period which is sufficient to
enable Oak Hill Financial to amend such plans to comply with the Tax Reform Act
of 1986 and subsequent legislation.
(c) The Xxxxxxxx Financial Disclosure Memorandum sets forth
(i) an accurate list of any plan or employment agreement under which the
execution or delivery of this Agreement or the consummation of the transactions
contemplated hereby could (either alone or in conjunction with any other event)
result in, cause the accelerated vesting, funding or delivery of, or increase
the amount or value of, any payment or benefit to any employee, officer or
director of Xxxxxxxx Financial or any of its subsidiaries, and (ii) the
financial calculations and assumptions whereby Xxxxxxxx Financial determined
that $815,000 is a reasonable estimate of the amount required to be paid in
calendar year 2004 such that payments made to employees in connection with the
transactions contemplated hereby will not constitute "excess parachute payments"
within the meaning of Section 280G of the Code, provided any outstanding
employment agreements are terminated prior to December 31, 2004 and all payments
and benefits are made or provided in accordance with the agreements entered into
by and between Xxxx X. Xxxxx, XxxXxx Xxxxxxx and Xxxxxxxx Financial, Xxxxxxxx
Federal and Oak Hill Financial; and (iii) the financial calculations and
assumptions whereby Xxxxxxxx Financial determined that $295,000 is a reasonable
estimate of the amount required to be paid in calendar year 2004 for the
termination of obligations to directors under any outstanding director
retirement plan such that payments made in the termination of the director
retirement plan obligations will not constitute "excess parachute payments"
within the meaning of Section 280G of the Code, provided the obligations to
directors are terminated prior to December 31, 2004 and all payments and
benefits are made or provided in accordance with the agreements entered into by
and between each director and Xxxxxxxx Financial, Xxxxxxxx Federal and Oak Hill
Financial.
3.20 Insurance Policies. Except as shown on the Xxxxxxxx Financial
------------------
Disclosure Memorandum, neither Xxxxxxxx Financial not any subsidiary maintains
insurance policies and fidelity bonds. A complete and correct list of the
insurance policies and fidelity bonds currently maintained by Xxxxxxxx Financial
or any subsidiary is listed on the Xxxxxxxx Financial Disclosure Memorandum and
the Xxxxxxxx Financial Disclosure Memorandum includes complete and correct
copies of all such policies and bonds currently in effect together with all
riders and amendments thereto or copies of such policies, bonds, riders and
amendment have been previously provided to Oak Hill Financial. All
16
17
As Executed
premiums due thereon have been paid and Xxxxxxxx Financial has complied in all
respects with the provisions of such policies and bonds. Xxxxxxxx Financial has
not failed to give any notice or present any claim under any insurance policy or
fidelity bond in due and timely fashion.
3.21 Capital Requirements. Xxxxxxxx Financial is in compliance with
--------------------
all currently applicable capital requirements and guidelines prescribed by all
appropriate federal regulatory agencies.
3.22 Loan Loss Reserves. Since June 30, 2004 Xxxxxxxx Financial has
--------------------
not incurred any unusual or extraordinary loan losses. The allowance for loan
losses reflected on the financial statements of Xxxxxxxx Financial has been
determined in accordance with generally accepted accounting principles and in
accordance with all applicable regulations of all appropriate regulatory
agencies and is adequate in all material respects under requirements of
accounting principles generally accepted in the United States to provide for
reasonably anticipated losses on outstanding loans. Xxxxxxxx Financial has no
knowledge of any potential losses that have not been considered in establishing
the current allowance for loan losses.
3.23 Brokers; Certain Fees. Neither Xxxxxxxx Financial, nor any of
---------------------
its officers, directors, or employees, has employed any broker or finder or
incurred any liability for any financial advisory fees, brokerage fees,
commissions, or finder's fees in connection with this Agreement, or the
transactions contemplated herein or therein.
3.24 Material Facts. Neither this Agreement, the Xxxxxxxx Financial
--------------
Disclosure Memorandum, nor any list, schedule, or certificate furnished to Oak
Hill Financial by or on behalf of Xxxxxxxx Financial contains any untrue
statement of a material fact or omits a material fact necessary in order to make
the statements contained therein not misleading in light of the circumstances in
which made.
3.25 Tax Treatment of the Merger. Neither Xxxxxxxx Financial nor any
---------------------------
Affiliate thereof has taken any action or has any Knowledge of any fact or
circumstance that is reasonably likely to prevent the transactions contemplated
hereby, including the Merger, from qualifying as a reorganization within the
meaning of Section 368(a) of the Code.
3.26 Filing of Reports. Xxxxxxxx Financial Common is registered
------------------
pursuant to Section 12 of the 1934 Act. Xxxxxxxx Financial has been subject to
the reporting requirements of Section 13 of the 1934 Act for a period of at
least 90 days prior to the date hereof and has filed all reports required to be
filed thereunder during the twelve months preceding the date hereof. Since
January 1, 2001, Xxxxxxxx Financial has filed with the SEC all documents and
reports (including all amendments, exhibits, and schedules thereto and documents
incorporated by reference therein) required to be filed by Xxxxxxxx Financial
under the 1934 Act and the 1933 Act, and the rules and regulations promulgated
by the SEC thereunder. None of such documents or reports, as of their respective
dates and as amended through the date hereof, contained any untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in view of the
circumstances under which they were made, not misleading.
3.27. Termination of Benefits. Based on its Knowledge, Xxxxxxxx
-------------------------
Financial can terminate prior to December 31, 2004, its and any subsidiary's
obligations (i) under any outstanding employment agreements of its Chief
Executive Officer and its Chief Financial Officer, for payments aggregating no
more than $815,000 and such payments shall not result in any amounts or benefits
expended under such agreements or plans constituting "excess parachute payments"
within the meaning of Section 280G of the Code and (ii) to directors under any
outstanding retirement plan for payments aggregating no more than $295,000 and
such payments shall not result in any amounts or benefits expended under such
agreements or plans constituting "excess parachute payments" within the meaning
of Section 280G of the Code.
3.28. Fairness Opinion. Xxxxxxxx Financial has received a fairness
-----------------
opinion from Xxxxx, Xxxxxxxx & Xxxxx, Inc. relating to the Merger stating that
the Consideration to be paid to the stockholders of Xxxxxxxx Financial is fair
to the stockholders of Xxxxxxxx Financial from a financial point of view.
17
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As Executed
SECTION 4. REPRESENTATIONS AND WARRANTIES OF OAK HILL FINANCIAL
----------------------------------------------------
Oak Hill Financial represents and warrants to Xxxxxxxx Financial that,
except as set forth in the Oak Hill Disclosure Memorandum:
4.01 Organization and Authority. Oak Hill Financial is a corporation
--------------------------
duly organized, validly existing, and in good standing under the laws of the
State of Ohio, is registered as a bank holding company under the Bank Holding
Company Act of 1956, as amended, is duly qualified to do business and is in good
standing in all jurisdictions where its ownership or leasing of property or the
conduct of its business requires it to be so qualified, and has the corporate
power and authority to own its properties and assets, to carry on its business
as it is presently being conducted, and to enter into and carry out its
obligations under this Agreement.
4.02 Capitalization. The authorized capital stock of Oak Hill
--------------
Financial consists of (i) 15,000,000 shares of Oak Hill Common, of which
5,544,514 shares were issued and outstanding as of the date hereof (excluding
treasury shares) and 1,200,000 reserved for issuance upon exercise of existing
stock options, and (ii) 1,500,000 voting shares of preferred stock, without par
value, and 1,500,000 non-voting shares of preferred stock, without par value, of
which there are no shares issued and outstanding as of the date hereof. All the
outstanding shares of Oak Hill Common are duly authorized, validly issued, fully
paid and nonassessable. All of the shares of Oak Hill Common to be issued
pursuant to this Agreement will, when so issued, be duly authorized, validly
issued, fully paid and nonassessable, and the issuance of such shares will not
be subject to any preemptive or similar rights.
4.03 Authorization. The execution, delivery, and performance of this
-------------
Agreement by Oak Hill Financial, and the consummation of the transactions
contemplated hereby, have been duly approved by the Board of Directors of Oak
Hill Financial.
4.04 Absence of Defaults. Neither the execution and delivery of this
-------------------
Agreement, nor the consummation of the Merger, nor compliance by Oak Hill
Financial with any of the provisions hereof will violate any provision of the
certificate of incorporation or code of regulations of Oak Hill Financial or
result in a breach or termination of, or accelerate the performance required by,
any note, bond, mortgage, lease, agreement, or other instrument to which Oak
Hill Financial is a party or to which Oak Hill Financial may be bound, except
for such violations or breaches that would not, individually or in the
aggregate, have a Material Adverse Effect on Oak Hill Financial.
4.05 Financial Statements. Oak Hill Financial has previously made
---------------------
available to Xxxxxxxx Financial copies of (i) the consolidated balance sheets of
Oak Hill Financial and its subsidiaries as of December 31, 2003 and 2002 and
related consolidated statements of income, cash flows and changes in
stockholders' equity for each of the three years in the three-year period ended
December 31, 2003, together with the notes thereto, accompanied by the audit
report of Oak Hill Financial's independent public auditors, as reported in Oak
Hill Financial's Annual Report on Form 10-K for the year ended December 31, 2003
filed with the SEC and (ii) the unaudited consolidated balance sheet of Oak Hill
Financial and its subsidiaries as of June 30, 2004 and the related consolidated
statements of income, cash flows and changes in stockholders' equity for the six
months ended June 30, 2004 and 2003, as reported in Oak Hill Financial's
Quarterly Report on Form 10-Q for the period ended June 30, 2004 filed with the
SEC. Such financial statements fairly present the financial position, results of
operations, and cash flows of Oak Hill Financial at the dates shown and for the
periods indicated in conformity with generally accepted accounting principles
applied on a consistent basis. There are no obligations or liabilities, whether
absolute, accrued, or contingent (including, without limiting the generality of
the foregoing, liabilities for taxes), of Oak Hill Financial which are required
in conformity with generally accepted accounting principles to be reflected or
disclosed in such financial statements which have not been so reflected or
disclosed.
4.06 Material Facts. Neither this Agreement nor this Agreement
---------------
contains any untrue statement of a material fact or omits a material fact
necessary in order to make the statements contained therein not misleading in
light of the circumstances in which made; provided, however, that the scope of
this representation does not extend to any information relating to or furnished
by Xxxxxxxx Financial.
18
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As Executed
4.07 Absence of Undisclosed Liabilities. Except to the extent
-------------------------------------
reflected or reserved against on the consolidated balance sheet of Oak Hill
Financial as of June 30, 2004 as included in Oak Hill Financial's Quarterly
Report on Form 10-Q for the period ended June 30, 0000, Xxx Xxxx Financial has
no liabilities, whether absolute, accrued, contingent, or otherwise, due or to
become due, including without limitation any liabilities as guarantor under any
guaranty or liabilities for taxes, except liabilities and taxes incurred in the
ordinary course of business, which have had or would reasonably be expected to
have a Material Adverse Effect on Oak Hill Financial.
4.08 Absence of Certain Changes. Except as provided in the Oak Hill
---------------------------
Disclosure Memorandum, since June 30, 0000, Xxx Xxxx Financial has not:
(a) made or permitted to be made any changes in its capital or
corporate structures, certificates or articles of incorporation, regulations,
bylaws, or other charter documents;
(b) merged with any other corporation or bank, or permitted
any other corporation or bank to merge into or consolidate with it; acquired
control over any other firm, bank, corporation, or organization; or created any
subsidiaries;
(c) issued, sold, delivered, or agreed to issue, sell, or
deliver any additional shares of its capital stock or any options, warrants, or
rights to acquire any such capital stock, or securities convertible into or
exchangeable for such capital stock, and except for capital stock issued
pursuant to the exercise of stock options previously issued, in accordance with
their respective terms;
(d) purchased, sold, transferred, or otherwise acquired or
disposed of, or agreed to purchase, sell, transfer, acquire, or dispose of, any
capital stock or other securities of any kind, or options or other rights to
acquire any such securities, of any other entity (including, but not limited to,
any such transactions involving either of Oak Hill Banks or Oak Hill Financial
with respect to the capital stock or other securities of the other of them),
other than in the ordinary course of business;
(e) incurred any indebtedness, obligations, or liabilities,
whether absolute, accrued, contingent, or otherwise, including, without
limitation, liabilities as guarantor under any guaranty, other than
indebtedness, obligations, and liabilities incurred in the ordinary course of
their business;
(f) adopted any change in any accounting policy or method;
(g) revalued any asset or adjusted any reserve, other than in
the ordinary course of business;
(h) failed to keep in full force and effect insurance and
bonds at least equal in amount and scope of coverage to the insurance and bonds
carried on June 30, 2004;
(i) suffered any Material Adverse Effect; and
(j) made any material increase in dividends until the
Effective Date of this Agreement.
4.09 Taxes. Oak Hill Financial has filed or caused to be filed all
-----
federal and other tax returns which are required to be filed and has paid or
made provision for payment of all taxes shown as due on such returns. No
deficiencies for any tax, assessment, or governmental charge have been proposed,
asserted, or assessed against Oak Hill Financial that have not been settled and
paid.
4.10 Litigation. There is no action, suit, proceeding, or claims
by any governmental agency or other person or entity nor any investigation by
any governmental agency pending or, to the Knowledge of Oak Hill Financial,
threatened against (i) Oak Hill Banks, (ii) Oak Hill Financial, (iii) the
assets, business or goodwill of Oak Hill Banks or Oak Hill Financial, or (iv)
any director, officer, or Principal Shareholder of Oak Hill Banks or Oak Hill
Financial, in relation to the business of Oak Hill Banks or Oak Hill Financial
or any such person's capacity as a director, officer, or Principal Shareholder
of Oak Hill Banks or Oak Hill Financial. Neither Oak Hill Financial nor any of
its subsidiaries
19
20
As Executed
is subject to any supervisory agreement, consent order or decree, cease and
desist order, or other restriction on its business or assets.
4.11 Environmental Matters.
---------------------
(a) To the Knowledge of Oak Hill Financial, Oak Hill Financial
and its subsidiaries are and have been at all times in substantial compliance
with all applicable Environmental, and Oak Hill Financial nor any of its
subsidiaries has engaged in any activity resulting in a material violation of
any applicable Environmental Law. No orders, hearings, actions, or other
proceedings by or before any court or governmental agency in which Oak Hill
Financial or any of its subsidiaries is a party are pending or, to the Knowledge
of Oak Hill Financial, threatened in connection with any alleged violation of
any applicable Environmental Law (i) by Oak Hill Financial or any of its
subsidiaries or (ii) in relation to any part of the Real Property, and Oak Hill
Financial has no Knowledge of any investigations or inquiries with respect to
any such alleged violation. No claims have been made or, to the Knowledge of Oak
Hill Financial, threatened at any time by any third party against Oak Hill
Financial or any of its subsidiaries relating to damage, contribution, cost
recovery, compensation, loss, or injury resulting from any Hazardous Substance.
To the Knowledge of Oak Hill Financial, neither Oak Hill Financial or any of its
subsidiaries has not caused or permitted any Hazardous Substance to be
integrated into the Real Property or any component thereof in such manner or
quantity as may reasonably be expected to or in fact would pose a threat to
human health or the value of the Real Property. None of the Real Property has
been used by Oak Hill Financial or any of its subsidiaries for the storage or
disposal of Hazardous Substances nor to the Knowledge of Oak Hill Financial, is
any of the Real Property contaminated by any Hazardous Substance. To the
Knowledge of Oak Hill Financial, none of the Real Property has in the past
contained or presently contains any underground storage tanks. To the Knowledge
of Oak Hill Financial, Oak Hill Financial or any of its subsidiaries has any
interest, direct or indirect, in any property owned by a third party which has
been contaminated by Hazardous Substances (excluding any property as to which
the sole interest of Oak Hill Financial or any of its subsidiaries is that of a
lien holder or mortgagee, but including any property as to which title has been
taken by Oak Hill Financial or any of its subsidiaries pursuant to mortgage
foreclosure or similar proceeding and any property as to which Oak Hill
Financial or any of its subsidiaries has participated in the financial
management to a degree sufficient to influence the property's treatment of
Hazardous Substances).
(b) To the Knowledge of Oak Hill Financial, the
representations set forth in paragraph (a) above are also true and correct in
relation to any and all real property owned or leased by it or any of its
subsidiaries at any time prior to the date of this Agreement, together with any
improvements located thereon.
4.12 Community Reinvestment Act Compliance. Oak Hill Banks is in
---------------------------------------
material compliance with the applicable provisions of the CRA and the
regulations promulgated thereunder, and currently has a CRA rating of
satisfactory or better from the FDIC. Oak Hill Financial knows of no fact or
circumstance or set of facts or circumstances which would cause Oak Hill
Financial to fail to comply with such provisions or to cause the CRA rating of
Oak Hill Banks to fall below satisfactory.
4.13 Compliance with Laws. Oak Hill Banks and Oak Hill Financial hold
--------------------
all permits, licenses, certificates of authority, orders, and approvals of, and
have made all filings, applications, and registrations with, all governmental or
regulatory bodies that are required in order to permit them to carry on their
respective businesses as they are presently conducted. To the Knowledge of Oak
Hill Financial, Oak Hill Banks and Oak Hill Financial have conducted their
businesses so as to comply in all material respects with all applicable
statutes, regulations, rules, and orders.
4.14 Information Provided by Oak Hill Financial. None of the
-----------------------------------------------
information supplied or to be supplied by Oak Hill Financial for inclusion in
the Registration Statement, application for approval, or any other document to
be filed with the Federal Reserve Board, the Division of Financial Institutions,
the SEC, or any other federal or state regulatory authority in connection with
the transactions contemplated herein or in this Agreement is or will be false or
misleading with respect to any material fact, or omits or will omit any material
fact necessary in order to make the statements therein not misleading.
20
21
As Executed
4.15 Employee Benefit Plans. All Employee Benefit Plans maintained
------------------------
by Oak Hill Banks or Oak Hill Financial comply in all material respects with the
requirements of ERISA and the Code and all such plans have been administered to
date in compliance with the requirements of ERISA, the Code, and subsequent
legislation regulating ERISA plans. Each of such plans that is an employee
pension benefit plan within the meaning of Section 3(2) of ERISA that is
intended to be a qualified plan under Section 401(a) of the Code has been
amended to comply in all material respects with current law as required or the
remedial amendment period for such amendment under Section 401(b) of the Code
has not expired and Oak Hill Banks or Oak Hill Financial has obtained favorable
determination letters with respect to all such plans. As of the date hereof, Oak
Hill Banks or Oak Hill Financial has no liability on account of any accumulated
funding deficiency (as defined in Section 412 of the Code) or on account of any
failure to make contributions to or pay benefits under any such plan nor is Oak
Hill Banks or Oak Hill Financial aware of any claim pending or threatened to be
brought by any party regarding such matters. No prohibited transaction has
occurred with respect to any such plan that would result, directly or
indirectly, in the imposition of any excise tax under Section 4975 of the Code;
nor has any reportable event under Section 4043 of ERISA occurred with respect
to any such plan. Neither Oak Hill Banks nor Oak Hill Financial is a defendant
in any lawsuit or criminal action concerning such entity's conduct as a
fiduciary, party-in-interest, or disqualified person with respect to any plan,
nor is either of them engaged in litigation or a continuing controversy with,
or, to the Knowledge of Oak Hill Financial, under investigation or examination
by, the Department of Labor, Internal Revenue Service, Justice Department, or
Pension Benefit Guaranty Corporation involving compliance with ERISA or the
provisions of the Code relating to employee benefit plans. All reporting and
disclosure requirements of ERISA and the Code have been met in all respects by
all such plans. Neither Oak Hill Banks nor Oak Hill Financial is required to
contribute to an Employee Benefit Plan that is a "multiemployer plan" within the
meaning of Section 3(37) of ERISA.
4.16 Capital Requirements. Neither Oak Hill Financial nor any
--------------------
Affiliate thereof is not in compliance with all currently applicable capital
requirements and guidelines prescribed by all appropriate federal regulatory
agencies.
4.17 Tax Treatment of the Merger. Neither Oak Hill Financial nor any
---------------------------
Affiliate thereof has not taken any action or has any knowledge of any fact or
circumstance that is reasonably likely to prevent the transactions contemplated
hereby, including the Merger, from qualifying as a reorganization within the
meaning of Section 368(a) of the Code.
4.18 Filing of Reports. Oak Hill Common is registered pursuant to
-----------------
Section 12 of the 0000 Xxx. Xxx Xxxx Financial has been subject to the reporting
requirements of Section 13 of the 1934 Act for a period of at least 90 days
prior to the date hereof and has filed all reports required to be filed
thereunder during the twelve months preceding the date hereof. Since January 1,
1996, Oak Hill Financial has filed with the SEC all documents and reports
(including all amendments, exhibits, and schedules thereto and documents
incorporated by reference therein) required to be filed by Oak Hill Financial
under the 1934 Act and the 1933 Act, and the rules and regulations promulgated
by the SEC thereunder. None of such documents or reports, as of their respective
dates and as amended through the date hereof, contained any untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in view of the
circumstances under which they were made, not misleading.
4.19 Insurance of Accounts. The deposits of Oak Hill Banks are
---------------------
insured up to the applicable limits by the BIF.
4.20 Availability of Funds. Oak Hill Financial will have available
-----------------------
to it at the Effective Time sources of capital sufficient to pay the aggregate
Cash Consideration and to pay any other amounts payable pursuant to this
Agreement and to effect the transactions contemplated hereby.
SECTION 5. COVENANTS OF XXXXXXXX FINANCIAL
-------------------------------
Xxxxxxxx Financial covenants and agrees as follows:
5.01 Applications for Regulatory Approvals; Registration Statement.
---------------------------------------------------------------
Xxxxxxxx Financial will cooperate, and will cause its respective directors,
officers, employees, agents, and advisers to cooperate, to the extent reasonably
21
22
As Executed
necessary, with Oak Hill Financial and its advisers in connection with the
preparation of the Registration Statement and the applications for regulatory
approvals described in Section 6.02 hereof and shall furnish all information
concerning it and the holders of its capital stock as Oak Hill Financial may
reasonably request in connection with such action. Xxxxxxxx Financial shall
assist Oak Hill Financial in the preparation of the Proxy Statement, as part of
the Registration Statement filed with the SEC, and shall mail such Proxy
Statement to Xxxxxxxx Financial Shareholders in accordance with Section 5.03
hereof.
5.02 Applications for Charter Conversion. As soon as reasonably
-------------------------------------
practicable after the execution of this Agreement, at the sole expense and with
the assistance of Oak Hill Financial, Xxxxxxxx Financial shall prepare and file
such applications with the Ohio Division of Financial Institutions, and any
other regulatory authorities having jurisdiction as may be required to secure
all necessary regulatory approvals for conversion of Xxxxxxxx Federal to a bank
chartered by the State of Ohio, which conversion shall occur immediately prior
to the Effective Time, and to immediately after the Effective Time consummate a
merger of Oak Hill Banks with and into Xxxxxxxx Federal as an Ohio state
chartered bank, and shall use its best efforts to secure such approvals.
5.03 Stockholders' Meeting. As soon as practicable and, in any
----------------------
event, within ten business days after the SEC has declared the Registration
Statement effective, Xxxxxxxx Financial will call and mail notice of a meeting
of its stockholders for the purpose of adopting this Agreement along with the
Proxy Statement, which meeting shall be held not more than 45 days from the date
the notice is mailed, and the Board of Directors of Xxxxxxxx Financial will to
the extent consistent with their fiduciary duty recommend to the stockholders
that they vote their shares in favor of the Merger.
5.04 Conduct of Business. From the date of this Agreement until the
-------------------
Effective Time, except as provided herein or as consented to by Oak Hill
Financial in writing, Xxxxxxxx Financial will conduct its respective operations
only, and shall not take any action except, in the ordinary and usual course of
business, and Xxxxxxxx Financial will use its best efforts to preserve intact
its business organization, assets, prospects, and business relationships, to
keep available the services of its officers and employees, and to maintain
existing relationships with other entities. Without limiting the generality of
the foregoing, subject to the exceptions stated above, during such period,
Xxxxxxxx Financial will not except as provided herein:
(a) enter into any agreement or commitment of the character
referred to in subsections 3.18(a)(i) through (xii) hereof; or
(b) take or permit to be taken any action of a character which
is listed in subsections (a) through (q) of Section 3.10 hereof; provided,
however, that, after prior consultation with Oak Hill Financial, Xxxxxxxx
Financial may take or permit such of those actions as may be required pursuant
to any change in applicable accounting rules or standards, or by law or any
applicable rules or regulations of any governmental authority.
5.05 Access to Information. Xxxxxxxx Financial shall give
-------------------------
representatives of Oak Hill Financial full access, during normal business hours
and upon reasonable notice, to all assets, properties, books, records,
agreements, and commitments of Xxxxxxxx Financial, provided that such access
shall not unreasonably interfere with the operations of Xxxxxxxx Financial, and
shall furnish to representatives of Oak Hill Financial all such information
concerning its and their affairs as Oak Hill Financial may reasonably request.
It is expressly understood that no investigation by Oak Hill Financial pursuant
to this Section 5.05 or otherwise shall affect any representation or warranty
made herein.
5.06 Press Releases. Xxxxxxxx Financial shall consult in advance
--------------
with Oak Hill Financial as to the form and substance of any press release,
written communication with its stockholders, or other public disclosure of
matters related to this Agreement or the Merger, and shall not issue any such
press release, written communication, or public disclosure without the prior
written consent of Oak Hill Financial; provided, however, that nothing contained
herein shall prohibit Xxxxxxxx Financial from making any disclosure (after
consultation with Oak Hill Financial with respect thereto) which its counsel
deems necessary under applicable law.
22
23
As Executed
5.07 Best Efforts. Xxxxxxxx Financial shall use its best efforts to
------------
take or cause to be taken all actions necessary, proper, or advisable to
consummate the Merger, including such actions as Oak Hill Financial may
reasonably request in writing.
5.08 Acquisition Proposals. Unless and until this Agreement shall
---------------------
have been terminated by either party pursuant to Section 12 hereof, Xxxxxxxx
Financial shall not (i) directly or indirectly, through any of its officers,
directors, agents, or affiliates, solicit, encourage, initiate or participate in
any negotiations or discussions with respect to any Acquisition Proposal, or
(ii) disclose any information not customarily disclosed to any person or entity
or provide access to its properties, books, or records or otherwise assist or
encourage any person or entity in connection with any Acquisition Proposal;
provided, however, that Xxxxxxxx Financial shall be entitled to participate in
negotiations and discussions regarding an Unsolicited Acquisition Proposal, and
to disclose such information and provide such access in connection with an
Unsolicited Acquisition Proposal, to the extent that the Board of Directors of
Xxxxxxxx Financial determines in good faith, after consultation with its
financial advisor with respect to the financial aspects of the Unsolicited
Acquisition Proposal and the Merger, and with its legal counsel, that failure to
take such action would be inconsistent with the fiduciary obligations of the
directors of Xxxxxxxx Financial to the stockholders of Xxxxxxxx Financial.
Xxxxxxxx Financial shall give Oak Hill Financial immediate notice of any
Acquisition Proposals.
5.09 Advice of Changes. Between the date hereof and the Effective
-----------------
Date, Xxxxxxxx Financial shall advise Oak Hill Financial promptly, in writing,
of any fact which, if existing or known on the date hereof, would have been
required to be set forth or disclosed in or pursuant to this Agreement and any
fact which, if existing or known on the date hereof, would have made any of the
representations contained herein untrue. Prior to the Effective Date, Xxxxxxxx
Financial shall deliver to Oak Hill Financial a supplement to the Xxxxxxxx
Financial Disclosure Memorandum, which shall contain a description of any and
all such matters.
5.10 Confidentiality. From and after the date of this Agreement,
---------------
Xxxxxxxx Financial shall, and shall cause its respective Affiliates to, treat
all Confidential Information of Oak Hill Financial and Oak Hill Banks, as
confidential, and Xxxxxxxx Financial shall, and shall cause its respective
Affiliates to, not use any such Confidential Information for any purpose except
in furtherance of the transactions contemplated hereby. In the event this
Agreement is terminated pursuant to Section 12 hereof, Xxxxxxxx Financial shall,
and shall cause its respective Affiliates to, promptly return to Oak Hill
Financial all documents and workpapers, and all copies thereof, containing any
such Confidential Information of Oak Hill Financial or Oak Hill Banks. The
covenants of Xxxxxxxx Financial contained in this Section 5.09 are of the
essence and shall survive any termination of this Agreement and the closing of
the transactions contemplated hereby.
5.11 Coordination of Dividends. Xxxxxxxx Financial agrees to
---------------------------
cooperate with Oak Hill Financial to ensure that the stockholders of Xxxxxxxx
Financial receive a regular quarterly dividend from either Xxxxxxxx Financial or
Oak Hill Financial during the quarter in which the Effective Date occurs, but
that they do not receive dividends from both Xxxxxxxx Financial and Oak Hill
Financial during such quarter.
5.12 Tax Representations. Xxxxxxxx Financial will use its reasonable
-------------------
efforts to cause the Merger, and will take no action which would cause the
Merger not to qualify for treatment as a "reorganization" within the meaning of
Section 368(a) of the Code for federal income tax purposes.
5.13 Form 13D or 13G Filings. Xxxxxxxx Financial shall promptly
-----------------------
advise Oak Hill Financial of the filing of a Form 13D or 13G under the 1934 Act
with respect to Xxxxxxxx Financial Common and shall provide Oak Hill Financial
with a copy of any such Form 13D or 13G promptly after receipt thereof.
5.14 ESOP Termination. As soon as practicable following the date
-----------------
hereof but, in any event, prior to the Effective Time, Xxxxxxxx Federal shall
take any and all action necessary to terminate its employee stock ownership plan
(the "Xxxxxxxx Federal ESOP") as of the Effective Time. The trustee of the
Xxxxxxxx Federal ESOP shall repay the existing loan of the Xxxxxxxx Federal ESOP
and allocate any unallocated assets remaining after the loan is repaid in
accordance with the terms of the Xxxxxxxx Federal ESOP and applicable law.
23
24
As Executed
5.15 Accounting Changes. Xxxxxxxx Financial agrees that, immediately
------------------
prior to the Effective Time, it will conform its and its subsidiaries accounting
measures and procedures to the accounting measures and procedures of Oak Hill
Financial and its subsidiaries, provided that such measures and procedures are
not prohibited by generally accepted accounting principles or applicable laws
and regulations.
5.16 Agreements of Affiliates. Xxxxxxxx Financial will use its best
------------------------
efforts to obtain from each director of Xxxxxxxx Financial and their
"affiliates," for purposes of Rule 145 under the 1933 Act, and to deliver to Oak
Hill Financial prior to the Effective Date a written agreement providing that
such person will not sell the shares of Oak Hill Common to be received by such
person in the Merger unless such sales are pursuant to an effective registration
statement under the 1933 Act or pursuant to Rule 145 of the SEC or another
exemption from the registration requirements under the 1933 Act.
5.17 Termination of Executive Benefits. Xxxxxxxx Financial shall
------------------------------------
terminate its and any subsidiary's obligations, under any outstanding employment
agreements with its Chief Executive Officer and its Chief Financial Officer, for
payments aggregating no more than $815,000 in calendar year 2004 and in a manner
which will not result in any amounts or benefits expended under such agreements
or plans constituting "excess parachute payments" within the meaning of Section
280G of the Code. Xxxxxxxx Financial, together with Xxxxxxxx Federal and Oak
Hill Financial, will enter into agreements with its Chief Executive Officer and
Chief Financial Officer concurrently with the execution of this Agreement
setting forth all payments and benefits to be made or provided to such persons
and all obligations related thereto.
5.18 Termination of Director Benefits. Xxxxxxxx Financial shall
----------------------------------
terminate its and any subsidiary's obligations to directors under any
outstanding retirement plan for payments aggregating no more than $295,000 in
calendar year 2004 and in a manner which will not result in any amounts or
benefits expended under such agreements or plans constituting "excess parachute
payments" within the meaning of Section 280G of the Code. Xxxxxxxx Financial,
together with Xxxxxxxx Federal and Oak Hill Financial, will enter into
agreements with each director concurrently with the execution of this Agreement
setting forth all payments and benefits to be made or provided to such persons
and all obligations related thereto.
5.19 Tax Returns. Xxxxxxxx Financial and its subsidiaries shall
-----------
prepare and timely file all tax returns reasonably requested by Oak Hill
Financial to be filed by them on or before the Closing Date. Oak Hill Financial
shall have a reasonable opportunity to review such Tax Returns and approve any
material elections. Xxxxxxxx Financial and its subsidiaries shall pay all Taxes
shown on such Tax Returns.
5.20. Real Property Matters. For each parcel of the Real Property
-----------------------
described in the Xxxxxxxx Financial Disclosure Memorandum as being owned by
Xxxxxxxx Financial, Xxxxxxxx Financial shall permit Oak Hill Financial to
obtain, at the sole expense of Oak Hill Financial, (a) a title insurance
commitment (ALTA 1966 form or its equivalent) for a fee owner's title insurance
policy in an amount equal to the carrying cost of the premises to be insured
(including all improvements thereon), on the books of Xxxxxxxx Financial as of
December 31, 2003 on such form as may be acceptable to Oak Hill Financial, (b)
current land surveys of those parcels of the Real Property, each survey to be
conducted and prepared by a duly licensed land surveyor, with such survey to be
a duly certified ALTA/ACSM field survey and (c) a "Phase I" environmental site
assessment prepared by a licensed environmental engineering firm, in each case
for the purpose of verifying the representations and warranties made by Xxxxxxxx
Financial regarding the Real Property.
5.21. Sale of Mobile Home Loans. Xxxxxxxx Federal shall complete the
-------------------------
sale of its indirect mobile loan portfolio and related accounts, if any,
pursuant to the agreements from purchase and sale between Xxxxxxxx Federal and
Xxxxxx Xxxxxx Mortgage Company, Inc. dated as of October 12, 2004, and shall not
enter into any amendment thereof without the written consent of Oak Hill
Financial.
SECTION 6. COVENANTS OF OAK HILL FINANCIAL
-------------------------------
Oak Hill Financial covenants and agrees as follows:
24
25
As Executed
6.01 Issuance of Oak Hill Common. At the Effective Time, Oak Hill
---------------------------
Financial shall issue all of the shares of Oak Hill Common into which shares of
Xxxxxxxx Financial Common are to be converted in the Merger and will deliver the
certificates for such shares, or cause the same to be delivered, to the Exchange
Agent.
6.02 Applications for Regulatory Approvals. As soon as reasonably
---------------------------------------
practicable after the execution of this Agreement, Oak Hill Financial shall
prepare and file such applications with the Office of Thrift Supervision, the
FDIC, the Federal Reserve Board, the Ohio Division of Financial Institutions,
and any other regulatory authorities having jurisdiction as may be required to
secure all necessary regulatory approvals of the Merger and shall use its best
efforts to secure such approvals. Oak Hill Financial shall deliver a draft or
drafts of such regulatory applications to Xxxxxxxx Financial and provide
Xxxxxxxx Financial a reasonable opportunity to review such draft or drafts prior
to filing the same.
6.03 Registration Statement. As soon as reasonably practicable after
----------------------
the execution of this Agreement, Oak Hill Financial shall prepare and file the
Registration Statement with the SEC, shall use its reasonable efforts to cause
the Registration Statement to become effective under the 1933 Act, and shall
take such action as may be required to register or qualify for exemption such
shares under the securities laws of the states where registration or an
exemption from registration may be required. Oak Hill Financial shall deliver a
draft or drafts of the Registration Statement to Xxxxxxxx Financial and provide
Xxxxxxxx Financial a reasonable opportunity to review such draft or drafts prior
to filing the same. Oak Hill Financial will advise Xxxxxxxx Financial, promptly
after it receives notice thereof, of the time when the Registration Statement
has become effective, the issuance of any stop order, the suspension of the
qualification of the Oak Hill Common issuable in connection with the Merger for
offering or sale in any jurisdiction, or any request by the SEC for amendment of
the Registration Statement. If at any time prior to the Effective Time any
information relating to Oak Hill Financial should be discovered by Oak Hill
Financial which should be set forth in an amendment or supplement to any of the
Registration Statement or the prospectus contained therein so that any of such
documents would not include any misstatement of a material fact or omit to state
any material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, Oak Hill Financial
shall promptly notify Xxxxxxxx Financial and, to the extent required by law,
rules or regulations, an appropriate amendment or supplement describing such
information shall be promptly filed with the SEC and disseminated to the
stockholders of Xxxxxxxx Financial.
6.04 Press Releases. Oak Hill Financial shall consult in advance
--------------
with Xxxxxxxx Financial as to the form and substance of any press release,
written communication with its shareholders, or other public disclosure of
matters related to this Agreement or the Merger.
6.05 Best Efforts. Oak Hill Financial will use its best efforts to
------------
take or cause to be taken all actions necessary, proper, or advisable to
consummate the Merger.
6.06 Confidentiality. From and after the date of this Agreement, Oak
---------------
Hill Financial and Oak Hill Banks shall, and shall cause their respective
Affiliates to, treat all Confidential Information of Xxxxxxxx Financial as
confidential, and Oak Hill Financial and Oak Hill Banks shall, and shall cause
their respective Affiliates to, not use any such Confidential Information for
any purpose except in furtherance of the transactions contemplated hereby. In
the event this Agreement is terminated pursuant to Section 12 hereof, Oak Hill
Financial and Oak Hill Banks shall, and shall cause their respective Affiliates
to, promptly return to Xxxxxxxx Financial all documents and workpapers, and all
copies thereof, containing any such Confidential Information of Xxxxxxxx
Financial. The covenants of Oak Hill Financial and Oak Hill Banks contained in
this Section 6.06 are of the essence and shall survive any termination of this
Agreement, but shall terminate as of the closing of the transactions
contemplated hereby.
6.07 Coordination of Dividends. Oak Hill Financial agrees to
---------------------------
cooperate with Xxxxxxxx Financial to ensure that the stockholders of Xxxxxxxx
Financial receive a regular quarterly dividend from either Xxxxxxxx Financial or
Oak Hill Financial during the quarter in which the Effective Date occurs, but
that they do not receive dividends from both Xxxxxxxx Financial and Oak Hill
Financial during such quarter.
25
26
As Executed
6.08 Employment Contracts; Employees of Xxxxxxxx Financial; Severance.
----------------------------------------------------------------
(a) Oak Hill Financial agrees to honor in accordance with
their terms all vested benefits or other vested amounts earned or accrued
through the Effective Time under the employment contracts, supplemental
executive retirement plan, director deferral fee agreements and director
retirement agreements described in the Xxxxxxxx Financial Disclosure Memorandum,
including benefits that vest or are otherwise accrued as a result of the
consummation of the transactions contemplated by this Agreement, in each case
except to the extent terminated by actions contemplated in this Agreement or
superseded by agreements entered into in connection with this Agreement.
(b) All persons who are employees of Xxxxxxxx Federal
immediately prior to the Effective Time and whose employment is not specifically
terminated at or prior to the Effective Time (a "Continuing Employee") shall, at
the Effective Time, become employees of Oak Hill Banks. All of the Continuing
Employees shall be employed at the will of Oak Hill Banks and no contractual
right to employment shall inure to such employees because of this Agreement.
(c) All persons who are employees of Xxxxxxxx Federal
immediately prior to the Effective Time and whose employment is terminated at
the Effective Time and all Continuing Employees whose employment is
involuntarily terminated without cause within one year of the Effective Time
shall be entitled to receive a severance payment pursuant to the terms of
Xxxxxxxx Federal's Employee Severance Compensation Plan.
6.09 Employee Benefit Plans.
----------------------
(a) Oak Hill Financial agrees to use its reasonable best
efforts to coordinate the conversion of any pension Employee Benefit Plans,
practices, or policies of Xxxxxxxx Financial into similar plans of Oak Hill
Financial, to the extent that such plans may exist, and to give credit to any
and all employees of Xxxxxxxx Financial and its subsidiaries who immediately
following the Effective Date become employees of Oak Hill Financial and its
subsidiaries following the consummation of the Merger for all service with
Xxxxxxxx Financial prior to the Effective Time for purposes of eligibility,
vesting, and all other purposes for which such service is taken into account or
recognized, to the extent feasible and permissible under all applicable laws and
regulations and the applicable terms of Oak Hill Financial's pension Employee
Benefit Plans.
(b) Oak Hill Financial agrees to use its reasonable best
efforts, including when permitted by law the amendment of existing plans, to
coordinate the maintenance of or conversion into similar plans of Oak Hill
Financial of any welfare Employee Benefit Plan, practice, or policy of Xxxxxxxx
Financial, to the extent feasible and permissible under all applicable laws and
regulations and the applicable terms of Oak Hill Financial's plans. Furthermore,
the former officers and employees of Xxxxxxxx Financial (and their spouses and
dependents, if applicable) who are under a Xxxxxxxx Financial plan on the
Effective Date, may, upon the cessation of their participation in a Xxxxxxxx
Financial plan being maintained by Oak Hill Financial after the Effective Date,
immediately participate in the corresponding benefit plan maintain by Oak Hill
Financial without regard to pre-existing conditions or waiting periods to the
extent then-permitted by law and the existing plans of Oak Hill Financial.
6.10 Indemnification of Directors and Officers.
-----------------------------------------
(a) Oak Hill Financial acknowledges that, by operation of law,
at the Effective Time, Oak Hill Financial will assume any and all legally
enforceable obligations of Xxxxxxxx Financial to indemnify and defend, and
advance expenses to, the directors and officers of Xxxxxxxx Financial pursuant
to, to the extent of, and in accordance with the terms and conditions of any
such obligations that Xxxxxxxx Financial had to indemnify and defend, and
advance expenses to, such persons in effect immediately prior to the Effective
Time, in connection with such persons' status or services as directors and
officers of Xxxxxxxx Financial, whether by contractual right or by any provision
of the articles of incorporation or bylaws of Xxxxxxxx Financial, with respect
to any claim asserted or made prior to or at any time after the Effective Time.
All such rights to indemnification and advancement of expenses with respect to
any such claim shall continue until the final disposition of such claim
regardless of when
26
27
As Executed
such claim was made or asserted; provided, however, that nothing contained
herein shall increase or lengthen the duration of Oak Hill Financial's
obligations with respect to such indemnification over that to which Xxxxxxxx
Financial would have been subject had the Merger not been consummated.
(b) For a period of five years following the Effective Time,
Oak Hill Financial will use its best efforts to provide directors' and officers'
liability insurance that serves to reimburse the present and former directors
and officers of Xxxxxxxx Financial or any of its subsidiaries with respect to
claims against such directors and officers arising from facts or events
occurring before the Effective Time (including the transactions contemplated
hereby), which insurance will contain at least the same coverage and amounts,
and contain terms and conditions no less advantageous to the person entitled to
indemnified, as that coverage currently provided by Oak Hill Financial for its
directors and officials; provided, however, that if Oak Hill Financial is unable
to maintain or obtain the insurance called for by this Section 6.10(b), Oak Hill
Financial will use its best efforts to obtain as much comparable insurance as is
reasonably available.
SECTION 7. CONDITIONS PRECEDENT TO OBLIGATIONS OF ALL PARTIES
--------------------------------------------------
The obligations of each of the parties hereto to consummate the Merger
are subject to the fulfillment, on or before the Closing Date, of the following
conditions precedent:
7.01 Shareholder Approval. This Agreement shall have been approved
--------------------
by the affirmative vote of the holders of at least a majority of the issued and
outstanding shares of Xxxxxxxx Financial Common.
7.02 Regulatory Approvals. The Merger shall have been approved by
---------------------
the Federal Reserve Board, and any other governmental authority having
jurisdiction, and any applicable waiting periods shall have expired, with no
such approval or authorization containing any provision which would be
materially adverse to the business of Xxxxxxxx Financial, Xxxxxxxx Federal, Oak
Hill Financial or Oak Hill Banks, either prior to or subsequent to the proposed
merger of Xxxxxxxx Financial and Oak Hill Financial.
7.03 Litigation. No suit, action, investigation by any governmental
----------
body, or legal or administrative proceeding shall have been brought or
threatened which materially questions the validity or legality of the
transactions contemplated hereunder or under this Agreement. For purposes
hereof, advisory opinions or written requests for information which could be
used in connection with such suit, investigation, or proceeding given by
governmental agencies may be deemed to constitute such a threat.
7.04 Tax Opinion. Oak Hill Financial and Xxxxxxxx Financial shall
-----------
have received an opinion of Porter, Wright, Xxxxxx & Xxxxxx LLP on the basis of
facts, representations and assumptions referenced in such opinions substantially
to the effect that the Merger will be treated as a reorganization within the
meaning of Section 368(a).
In rendering such tax opinion, Porter, Wright, Xxxxxx & Xxxxxx
LLP may request and shall be entitled to rely upon representations contained in
certificates of officers, directors and others of Xxxxxxxx Financial and Oak
Hill Financial reasonably satisfactory in form and substance to Porter, Wright,
Xxxxxx & Xxxxxx LLP and Xxxxxxxx Financial and Oak Hill Financial shall use
their best efforts to make available such certificates.
SECTION 8. CONDITIONS PRECEDENT TO OBLIGATIONS OF XXXXXXXX FINANCIAL
---------------------------------------------------------
The obligations of Xxxxxxxx Financial to consummate the Merger are
subject to the fulfillment on or before the Closing Date of the following
additional conditions precedent:
8.01 Representations and Warranties. The representations and
--------------------------------
warranties made by Oak Hill Financial herein shall be true and correct as of the
Closing Date with the same force and effect as though such representations and
warranties had been made on and as of such date; provided that no representation
or warranty (other than the representations and warranties contained in Section
4.02, which shall be true in all material respects) will be deemed
27
28
As Executed
untrue, and Oak Hill Financial will not be deemed to have breached a
representation or warranty, as a consequence of the existence of any fact, event
or circumstance unless such fact, event or circumstance, individually or taken
together with all other facts, events or circumstances inconsistent with any
representation or warranty contained in Section 4 hereof, has had or is
reasonably likely to have a Material Adverse Effect with respect to Oak Hill
Financial; Oak Hill Financial shall have performed in all material respects its
obligations hereunder and under this Agreement to be performed on or before the
Closing Date; and an executive officer of Oak Hill Financial shall have executed
and delivered to Xxxxxxxx Financial a certificate or certificates, dated as of
the Closing Date, in respect of the foregoing matters and in respect of such
other matters as Xxxxxxxx Financial shall reasonably request.
8.02 Effectiveness of the Registration Statement; NASD Listing.
---------------------------------------------------------------
Xxxxxxxx Financial shall have received a certificate from a duly authorized
officer of Oak Hill Financial to the effect that the Registration Statement has
become effective by an order of the SEC, the Oak Hill Common to be exchanged in
the Merger has been qualified or is exempt under all applicable state securities
laws, and there has been no stop order issued or threatened by the SEC that
suspends or would suspend the effectiveness of the Registration Statement, and
no proceeding has been commenced or overtly threatened for such purpose. The
shares of Oak Hill Common to be issued to Xxxxxxxx Financial stockholders
pursuant to this Agreement shall have been authorized for listing on the NASDAQ
National Market upon official notice of issuance.
8.03 Material Adverse Change. Since June 30, 2004, there shall not
-------------------------
have occurred any event which has had a Material Adverse Effect on Oak Hill
Financial.
SECTION 9. CONDITIONS PRECEDENT TO OBLIGATIONS OF OAK HILL FINANCIAL
---------------------------------------------------------
The obligations of Oak Hill Financial to consummate the Merger are
subject to the fulfillment on or before the Closing Date of the following
additional conditions precedent:
9.01 Regulatory Approval of the Subsidiary Merger. The merger of
-----------------------------------------------
Xxxxxxxx Federal and Oak Hill Banks shall have been approved by the Federal
Reserve Board, the Division of Financial Institutions, and any other
governmental authority having jurisdiction, and any applicable waiting periods
shall have expired, with no such approval or authorization containing any
provision which would be materially adverse to the business of Oak Hill
Financial or Oak Hill Banks.
9.02 Representations and Warranties. The representations and
---------------------------------
warranties made by Xxxxxxxx Financial herein shall be true and correct as of the
Closing Date with the same force and effect as though such representations and
warranties had been made on and as of such date, provided that no representation
or warranty (other than the representations and warranties contained in Section
3.02, which shall be true in all material respects) will be deemed untrue, and
Xxxxxxxx Financial will not be deemed to have breached a representation or
warranty, as a consequence of the existence of any fact, event or circumstance
unless such fact, event or circumstance, individually or taken together with all
other facts, events or circumstances inconsistent with any representation or
warranty contained in Section 3 hereof, has had or is reasonably likely to have
a Material Adverse Effect with respect to Xxxxxxxx Financial; and the chief
executive officer and principal financial officer of Xxxxxxxx Financial shall
have executed and delivered to Oak Hill Financial certificates, dated as of the
Closing Date, in respect of the foregoing matters and in respect of such other
matters as Oak Hill Financial shall reasonably request.
9.03 Dissenting Stockholders. The total number of shares of Xxxxxxxx
-----------------------
Financial Common, if any, as to which the right to dissent has been asserted
under Section 3-202 of the Maryland Corporations and Associations Code shall not
exceed ten percent (10%) of the total number of outstanding shares of Xxxxxxxx
Financial Common.
9.04 Material Adverse Change. Since June 30, 2004, there shall not
-----------------------
have occurred any event which has had a Material Adverse Effect on Xxxxxxxx
Financial.
28
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As Executed
9.05 Title Insurance. Within 90 days of the date of this Agreement,
----------------
Oak Hill Financial shall have obtained a title insurance commitment (ALTA 1966
form or its equivalent) for a fee owner's title insurance policy or leasehold
owner's title insurance policy, as appropriate, for each parcel of the Real
Property described in the Xxxxxxxx Financial Disclosure Memorandum as being
owned by Xxxxxxxx Financial, and for each lease for any parcel of the Real
Property described in the Xxxxxxxx Financial Disclosure Memorandum as being
leased by Xxxxxxxx Financial, each in an amount equal to the carrying cost of
the premises or leasehold interest to be insured (including all improvements
thereon), on the books of Xxxxxxxx Financial as of December 31, 2003. Each title
insurance commitment shall show that marketable fee simple title to the owned
premises or that valid leasehold title to the leased premises, as appropriate,
is in the name of Xxxxxxxx Financial, and that it is free and clear of any liens
and encumbrances except taxes and assessments not delinquent and utility and
other easements that do not interfere with the use of the property for the
business being conducted thereon; provided however that any defect noted that is
correctable, in Oak Hill Financial's reasonable discretion, for less than
$100,000 shall be deemed to have been corrected Each such commitment shall
provide that such fee owner's policy committed for therein shall be an ALTA 1970
form, revised in 1984, and each leasehold owner's policy shall be an ALTA 1975
form, or other form acceptable to Oak Hill Financial.
9.06 Survey. Within 90 days of the date of this Agreement, Oak Hill
------
Financial Banks shall have obtained current land surveys of those parcels of the
Real Property. Each survey to be conducted and prepared by a duly licensed land
surveyor, with such survey to be a duly certified ALTA/ACSM field survey, which
confirm that the Real Property is not subject to any easements, restrictions,
set backs, encroachments, or other limitations except utility and other
easements that do not interfere with the use of the Real Property for the
business then being conducted thereon, and that the Real Property is not located
in any flood hazard area, provided however that any defect noted that is
correctable, in Oak Hill Financial's reasonable discretion, for less than
$100,000 shall be deemed to have been corrected.
9.07 Phase I. Within 90 days of the date of this Agreement, for
-------
each parcel of the Real Property described in the Xxxxxxxx Financial Disclosure
Memorandum as being leased or owned by Xxxxxxxx Financial, Oak Hill Financial
shall have completed a "Phase I" environmental site assessment prepared by a
licensed environmental engineering firm indicating that there is no evidence of
contamination with Hazardous Substances or other violations of environmental
Laws and concluding that no testing or additional investigations appears to be
warranted, provided however that any defect noted that is correctable, in Oak
Hill Financial's reasonable discretion, for less than $100,000 shall be deemed
to have been corrected.
9.08 Consents and Approvals. Xxxxxxxx Financial shall have obtained
-----------------------
any and all consents or approvals that may be required under the terms of (i)
any contract, agreement, lease, or other obligation or commitment, including,
but not limited to, the types described in Section 3.18 hereof, to which either
Xxxxxxxx Financial or Xxxxxxxx Federal is a party or by which either Xxxxxxxx
Financial or Xxxxxxxx Federal or any of their property or assets is bound, or
(ii) any license or permit of Xxxxxxxx Financial or Xxxxxxxx Federal, in order
to avoid the occurrence of any breach or default which may result from the
consummation of the Merger and which, if not obtained, is reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on Oak Hill
Financial after giving effect to the consummation of the transactions
contemplated hereby.
9.09 Stockholders' Equity. The consolidated total stockholders'
---------------------
equity of Xxxxxxxx Financial, calculated as set forth in the following sentence,
as of the end of the month prior to the month in which the Closing Date shall
occur shall not be less than the $13,715,612. For purposes of this Section 9.09,
the consolidated total stockholders' equity of Xxxxxxxx Financial shall be as
determined in accordance with accounting principles generally accepted in the
United States, but shall be exclusive of (a) any change in accumulated other
comprehensive income, net of tax, since June 30, 2004; (b) financial advisory
fees and legal and other expenses related to the transactions contemplated by
this Agreement; (c) accounting adjustments relating to the Merger as requested
by Oak Hill Financial, (d) the effect of the sale by Xxxxxxxx Federal of its
indirect mobile home loan portfolio, and (e) other payments and expenses
contemplated by this Agreement and agreed to by the parties.
9.10 Termination of Executive Benefits. Xxxxxxxx Financial shall
-------------------------------------
have terminated its and any subsidiary's obligations under any outstanding
employment agreements with its Chief Executive Officer and its Chief Financial
29
30
As Executed
Officer for payments aggregating $815,000 or less in calendar year 2004 in
accordance with the agreements entered into pursuant to Section 5.17 hereof.
9.11 Termination of Director Benefits. Xxxxxxxx Financial shall have
--------------------------------
terminated its and any subsidiary's obligations to its directors under any
outstanding director retirement plan for payments aggregating $295,000 or less
in calendar year 2004 in accordance with the agreements entered into pursuant to
Section 5.18 hereof.
9.12 Sale of Mobile Home Loans. Xxxxxxxx Federal shall have
-----------------------------
completed the sale of its indirect mobile loan portfolio and related accounts,
if any, and purchaser pursuant to agreements for purchase and sale between
Xxxxxxxx Federal and Xxxxxx Xxxxxx Company, Inc. dated as of October 12, 2004.
9.13 Effectiveness of the Registration Statement; NASD Listing; Blue
----------------------------------------------------------------
Sky. The Registration Statement shall have been declared effective by an order
---
of the SEC, there shall be no stop order issued or threatened by the SEC that
suspends or would suspend the effectiveness of the Registration Statement, and
no proceeding has been commenced or overtly threatened for such purpose. The
shares of Oak Hill Common to be issued to Xxxxxxxx Financial stockholders
pursuant to this Agreement shall have been authorized for listing on the NASDAQ
National Market upon official notice of issuance. The Oak Hill Common to be
exchanged in the Merger shall have been qualified or is exempt from registration
under all applicable state securities laws.
SECTION 10. CLOSING DATE
------------
The closing of the transactions contemplated by this Agreement
("Closing Date") shall be held at 11:00 a.m. at the offices of Porter, Wright,
Xxxxxx & Xxxxxx LLP in Columbus, Ohio, on a date on which the parties agree
after the conditions specified in Sections 7.01 and 7.02 hereof have been
satisfied.
SECTION 11. AMENDMENT
---------
At any time prior to the Closing Date, the parties, subject to Section
12 of this Agreement, may modify, amend, or supplement this Agreement by mutual
agreement authorized by their respective boards of directors and evidenced by an
instrument in writing executed and delivered by the parties hereto, whether
before or after the stockholders of Xxxxxxxx Financial have adopted this
Agreement.
SECTION 12. TERMINATION
-----------
12.01 Termination. This Agreement shall terminate on September 1,
-----------
2005, unless a later date is agreed upon in writing by the parties, and may be
terminated and the Merger may be abandoned at any time prior to the Effective
Time as follows:
(a) by the mutual consent, evidenced in writing, of the boards
of directors of Oak Hill Financial, and Xxxxxxxx Financial;
(b) by the board of directors of Oak Hill Financial, by giving
written notice thereof to Xxxxxxxx Financial, which notice shall specify in
reasonable detail the grounds therefor: (i) if any condition precedent to
performance by Oak Hill Financial and Oak Hill Banks has not been satisfied or
waived (other than those conditions that by their terms are intended to be
satisfied on the Closing Date); (ii) if Xxxxxxxx Financial has not fully
performed its obligations and agreements hereunder and under this Agreement; or
(iii) if any of the representations of Xxxxxxxx Financial set forth herein are
untrue or incorrect in any material respect subject to the standard set forth in
Section 9.02 and such untrue or incorrect representation is not cured within 30
days following written notice to Xxxxxxxx Financial or such untrue or incorrect
representation, by its nature, cannot be cured prior to the Effective Time; or
(c) by the board of directors of Xxxxxxxx Financial, by
giving written notice thereof to Oak Hill Financial, which notice shall specify
in reasonable detail the grounds therefor: (i) if any condition precedent to
30
31
As Executed
performance by Xxxxxxxx Financial has not been satisfied or waived (other than
those conditions that by their terms are intended to be satisfied on the Closing
Date); (ii) if Oak Hill Financial and Oak Hill Banks have not fully performed
their obligations and agreements hereunder and under this Agreement; or (iii) if
any of the representations of Oak Hill Financial set forth herein are untrue or
incorrect in any material respect subject to the standard set forth in Section
9.02; or and such untrue or incorrect representation is not cured within 30 days
following written notice to Oak Hill Financial or such untrue or incorrect
representation, by its nature, cannot be cured prior to the Effective Time.
12.02 Survival of Certain Provisions upon Termination; Nonsurvival of
----------------------------------------------------------------
Representations, Warranties and Agreements. Upon a termination of this Agreement
------------------------------------------
as provided herein, this Agreement shall become void and there shall be no
further obligation or liability on the part of any party hereto or their
respective shareholders, directors, or officers, except pursuant to Sections
5.10, 6.06, 12.03, and 13 hereof, which shall survive a termination of this
Agreement in accordance with the express terms of such Sections. None of the
representations, warranties covenants and agreements in this Agreement shall
survive the Effective Time, except for those covenants and agreements contained
herein that by their terms apply in whole or in part after the Effective Time.
12.03 Termination Fee. During the term of this Agreement, if (i) an
----------------
Unsolicited Acquisition Proposal is submitted to and approved by the
stockholders of Xxxxxxxx Financial at any time prior to the Effective Time, or
(ii) an Unsolicited Acquisition Proposal is received by Xxxxxxxx Financial or is
made directly to the stockholders of Xxxxxxxx Financial at any time prior to the
holding of the meeting of the stockholders of Xxxxxxxx Financial to be called
pursuant to Section 5.03 hereof, the board of directors of Xxxxxxxx Financial
fails to recommend to the stockholders of Xxxxxxxx Financial approval of this
Agreement or this Agreement, withdraws such recommendation previously made to
the stockholders of Xxxxxxxx Financial, or fails to solicit proxies of
stockholders of Xxxxxxxx Financial to approve the Merger and this Agreement are
subsequently rejected by the stockholders of Xxxxxxxx Financial at such meeting,
then, in either such event, Xxxxxxxx Financial shall pay to Oak Hill Financial,
within five business days after a termination of this Agreement following such
an event, a cancellation fee in the amount of $500,000, as liquidated damages,
and not as a penalty, and, upon the payment in full thereof, Xxxxxxxx Financial
shall have no further liability under this Agreement. The obligations of
Xxxxxxxx Financial under this Section 12.03 shall survive a termination of this
Agreement, provided that, at the time of such termination, (1) an event
described in Section 8.03 hereof has not occurred, and (2) Xxxxxxxx Financial
does not have the right to terminate this Agreement by virtue of a material
breach of this Agreement by Oak Hill Financial or Oak Hill Banks.
SECTION 13. EXPENSES
--------
Except as otherwise expressly provided herein, all expenses incurred by
or on behalf of the parties hereto in connection with the authorization,
preparation, execution, and consummation of this Agreement, including, without
limitation, all fees and expenses of agents, representatives, printers, and
counsel employed by the parties hereto, and taxes, if any, shall be borne solely
by the party which has or shall have incurred the same. The covenants of the
parties contained in this Section 13 shall survive a termination of this
Agreement for any reason.
SECTION 14. NOTICES
-------
All notices, requests, demands, and other communications hereunder
shall be in writing and shall be deemed to have been duly given if delivered
personally or sent by facsimile and confirmed by first-class, certified mail,
postage prepaid, addressed as indicated below, or at such other address as such
party may designate in writing to the other parties:
(a) If to Xxxxxxxx Financial or Xxxxxxxx Federal, to:
Xxxx X. Xxxxx
President and CEO
Xxxxxxxx Financial Holdings, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxx 00000
31
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As Executed
(b) If to Oak Hill Financial or Oak Hill Banks, to:
Xxxxx X. Xxxxxxx Xx.
President and CEO
Oak Hill Financial, Inc.
00000 Xxxxx Xxxxx 00
Xxxxxxx, Xxxx 00000
SECTION 15. GENERAL PROVISIONS
------------------
15.01 Entire Agreement. This Agreement, together with the documents
----------------
referred to or incorporated herein or therein, reflect the entire agreement
among the parties with respect to the subject matter thereof and supersede all
prior agreements and understandings, oral or written, among the parties with
respect to such subject matter, and no party shall be liable or bound to any
other party in any manner by any representations, warranties, or covenants
except as specifically set forth herein or therein.
15.02 Waiver. At any time on or prior to the Effective Date, any
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party hereto may (i) waive any inaccuracies in the representations and
warranties of the other parties contained in this Agreement or in any document
delivered pursuant hereto or thereto, or (ii) waive compliance by the other
parties with any of the conditions, covenants, and agreements contained in this
Agreement.
15.03 Assignment. Neither this Agreement nor any rights, interests,
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or obligations hereunder shall be assigned or transferred by operation of law or
otherwise by any of the parties hereto without the prior written consent of the
other party; provided that following the Effective Time this Agreement shall be
binding upon the successors and assigns of the Surviving Corporation.
15.04 Benefit. Except as specifically provided herein, nothing in
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this Agreement, express or implied, is intended to confer upon any person or
entity other than the parties hereto and their successors in interest any rights
or remedies under or by reason of this Agreement.
15.05 Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed an original for all purposes, but
such counterparts taken together shall constitute one and the same instrument.
15.06 Governing Law. This Agreement shall be construed and enforced in
-------------
accordance with the laws of the State of Ohio without regard to its conflicts of
laws principles.
15.07 Incorporation by Reference. The Disclosure Memoranda, and all
--------------------------
Exhibits attached hereto are hereby incorporated by reference herein.
[Left intentionally blank. Signature pages follow.]
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As Executed
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
OAK HILL FINANCIAL, INC.
By: /s/ Xxxxx X. Xxxxxxx Xx.
---------------------------------------
Xxxxx X. Xxxxxxx Xx., President and CEO
XXXXXXXX FINANCIAL HOLDINGS, INC.
By: /s/ Xxxx X. Xxxxx
------------------------------------
Xxxx X. Xxxxx, President and CEO
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As Executed
EXHIBIT A
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AGREEMENT AND PLAN OF MERGER
----------------------------
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made as of
_________ __, 200_, between OAK HILL BANKS, a banking corporation chartered
under the law of Ohio ("Oak Hill Banks") and XXXXXXXX BANK formerly known as
XXXXXXXX FEDERAL SAVINGS BANK, a banking corporation chartered under the law of
Ohio ("Xxxxxxxx Federal") Xxxxxxxx Federal and Oak Hill Banks are collectively
referred to herein as the "Constituent Corporations".
RECITALS
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A. Oak Hill Banks is a banking corporation organized and existing
under the laws of Ohio and is authorized to issue 1300 shares of common stock,
$1,000.00 par value ("Oak Hill Banks Common"), all of which are issued and
outstanding as of the date hereof and owned by Oak Hill Financial, Inc., an Ohio
corporation ("Oak Hill Financial").
X. Xxxxxxxx Federal is a banking corporation organized and existing
under the laws of Ohio and is authorized to issue ______ shares of common stock,
______ par value ("Xxxxxxxx Federal Common"), of which _______ shares are issued
and outstanding as of the date hereof and owned by Oak Hill Financial.
C. The respective boards of directors of the Constituent Corporations
have approved the merger of Oak Hill Banks with and into Xxxxxxxx Federal
substantially on the terms and conditions contained in this Agreement.
Furthermore, the board of directors and the parties hereto intend for this
transaction to be a tax-free reorganization pursuant to Section 368(a) of the
Internal Revenue Code of 1986, as amended.
AGREEMENT
---------
In consideration of the foregoing and the mutual promises contained
herein, the parties agree as follows:
1. Merger. Subject to the terms and conditions hereof, at the
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"Effective Time" (as such term is defined in Section 2 hereof), Oak Hill Banks
shall be merged with and into Xxxxxxxx Federal (the "Merger"). Xxxxxxxx Federal
shall be the surviving corporation in the Merger (the "Surviving Corporation"),
and shall continue its corporate existence under the laws of Ohio following the
consummation of the Merger. At the Effective Time, the separate existence and
corporate organization of Oak Hill Financial shall cease.
2. Effective Date and Time. The Merger shall be effective on (i) the
-----------------------
day on which this Agreement and the related Certificate of Merger have been
filed in accordance with the requirements of the laws of Ohio, or (ii) such
later date and time as may be specified in such Certificate of Merger (the
"Effective Time").
3. Name. The name of the Surviving Corporation shall be "Oak Hill
----
Banks."
4. Charter. The Articles of Incorporation attached hereto as
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Exhibit A shall be the articles of incorporation of the Surviving Corporation,
until amended in accordance with law.
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35
As Executed
5. Directors. The directors of the Surviving Corporation shall be
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Xxxxx X. Xxxxxxx, Xx., 000 Xxxxxxxxxx Xxxxx, Xxxxxxxxxxx, XX 00000; Xxxx X.
Xxxxx, 000 X. Xxxxx Xxxxxx, Xxx Xxxx, XX 00000; Xxxx X. Xxxx, 0000 Xxxx Xxxxxx
Xx., Xxxxxxx, XX 00000; Xxxxx Xxxx, 000 Xxxxx Xxxx, Xxxxxxx, XX 00000; Xxx X.
Xxxxxx, 0000 Xxxxxxxx Xxxxxx, Xxxxxxx, XX 00000; Xxxxx X. Xxxxxx, Xx., 000 Xxxxx
Xxxxxx, Xxxxxxx, XX 00000; Xxxxxxx X. Xxxxx, 00000 Xxxxx Xxxxx 000, Xxx Xxxx, XX
00000; and Miles X. Xxxxxxxxxx, 00 Xxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000 to serve
until their successors are duly elected and qualified in accordance with the
regulations of the Surviving Corporation and the laws of Ohio.
6. Regulations. The Code of Regulations attached hereto as Exhibit
-----------
B shall be the regulations of the Surviving Corporation, until amended in
accordance with law.
7. Statutory Agent. The name and address of the agent upon whom any
----------------
process, notice, or demand against any Constituent Corporation or the Surviving
Corporation may be served is H. Xxxxx Xxxxxxxxxx, 00 Xxxxx Xxxx Xxxxxx, Xxxxx
0000, Xxxxxxxx, Xxxx 00000.
8. Conversion of Shares. All shares of Oak Hill Banks that are
--------------------
issued and outstanding immediately prior to the Effective Time shall continue to
be issued and outstanding shares of Oak Hill Banks Common at and after the
Effective Time. At the Effective Time, the shares of Xxxxxxxx Federal Common
issued and outstanding immediately prior to the Effective Time shall be
cancelled.
9. Effect of the Merger.
--------------------
(a) At the Effective Time, the effect of the Merger shall be as
provided by the applicable provisions of the laws of Ohio. Without limiting the
generality of the foregoing, and subject thereto, at the Effective Time, the
separate existence of Oak Hill Banks shall cease; all assets and property (real,
personal, and mixed, tangible and intangible, choses in action, rights, and
credits) then owned by Oak Hill Banks, or which would inure to Oak Hill Banks,
shall immediately, by operation of law and without any conveyance, transfer, or
further action, become the assets and property of the Surviving Corporation. All
rights and obligations of Oak Hill Banks shall remain unimpaired and the
Surviving Corporation shall succeed to all such rights and obligations.
(b) From time to time, as and when requested by the Surviving
Corporation or by its successors, the respective officers and directors of
Xxxxxxxx Federal in office at the Effective Time shall execute and deliver such
instruments and shall take or cause to be taken such further or other action as
shall be necessary in order to vest or perfect in the Surviving Corporation, or
to confirm of record or otherwise, title to, and possession of, all the assets,
property, interests, rights, privileges, immunities, powers, franchises, and
authority of Xxxxxxxx Federal, as the case may be, and otherwise to carry out
the purposes of this Agreement.
10. Offices. The principal executive offices of the Surviving
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Corporation shall be located at 000 Xxxx Xxxx Xxxxx, Xxxxxxx, Xxxx 00000.
11. Additional Agreements. Subject to the terms and conditions
---------------------
provided in this Agreement, the parties hereto shall use their reasonable best
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary, proper, or advisable under applicable laws and
regulations to consummate and make effective, as soon as reasonably practicable,
the transactions contemplated by this Agreement, subject, however, to the
adoption of this Agreement by the shareholders of Xxxxxxxx Federal and Oak Hill
Banks and the receipt of all required regulatory approvals.
12. Amendment. At any time prior to the Effective Time, the parties
---------
hereto may amend, modify, or supplement this Agreement by mutual agreement
authorized by their respective boards of directors and provided, further, that
this Agreement may not be amended, modified, or supplemented, except by an
instrument in writing executed and delivered by each of the parties hereto.
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As Executed
13. Termination. This Agreement may be terminated only by the mutual
-----------
agreement of the parties hereto.
14. Entire Agreement. This Agreement constitutes the entire agreement
----------------
among the parties with respect to the subject matter thereof and supersedes all
prior agreements and understandings, oral or written, among the parties with
respect to such subject matter and no party shall be liable or bound to the
others in any manner by any covenants, representations, or warranties except as
specifically set forth herein or therein.
15. Titles and Subtitles. The titles and subtitles used in this
----------------------
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
16. Assignment. Neither this Agreement nor any rights, interests, or
----------
obligations hereunder shall be assigned or transferred by operation of law or
otherwise by any of the parties hereto without the prior written consent of the
other parties.
17. Benefit. Nothing in this Agreement, express or implied, is
-------
intended to confer upon any person or entity other than the parties hereto and
their successors in interest any rights or remedies under or by reason of this
Agreement.
18. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed an original for all purposes, but
such counterparts taken together shall constitute one and the same instrument.
19. Governing Law. This Agreement shall be construed and enforced in
-------------
accordance with the laws of the State of Ohio without regard to its conflict of
laws principles.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
OAK HILL BANKS
By:
-----------------------------------------
Xxxxx X. Xxxxxx, President
XXXXXXXX BANK
By:
-----------------------------------------
Xxxx X. Xxxxx, President
36
