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EXHIBIT 2.2
AGREEMENT AND PLAN OF SHARE EXCHANGE
THIS AGREEMENT AND PLAN OF SHARE EXCHANGE (the "Agreement"), is
effective as of ____________________, 1998, by and between Glacier Bancorp,
Inc., a Delaware corporation ("Glacier") and Valley Bank of Helena, a Montana
state-chartered commercial bank with its principal place of business at Helena,
Montana (the "Bank").
RECITALS
A. Glacier is a Delaware corporation and bank holding company registered
under the Bank Holding Company Act of 1956, as amended. HUB Financial
Corporation ("HUB") is a Montana corporation and bank holding company registered
under the Bank Holding Company Act of 1956, as amended. HUB currently owns
approximately 86.5 percent of the issued and outstanding common stock of Bank.
B. Glacier and HUB have entered a Plan and Agreement of Merger providing
for the merger of HUB with and into Glacier (the "Merger Agreement" and the
"Merger"). Pursuant to the Merger Agreement, holders of HUB common stock will be
entitled to receive certain shares of Glacier common stock as more particularly
provided in the Merger Agreement.
C. Glacier desires to acquire the shares of Bank common stock issued and
outstanding and not owned as of record by HUB (the "Minority Stock") in a
transaction immediately following the Merger and to issue and exchange Glacier
common stock for each share of Minority Stock (the "Exchange") on the terms,
conditions and covenants of this Agreement.
D. Except as otherwise defined herein, capitalized terms used herein
shall be accorded the meaning given such terms in the Merger Agreement.
IN CONSIDERATION OF THE ABOVE, the parties agree as follows:
1. SHARE EXCHANGE
1.1 Plan of Share Exchange. On the Effective Date (as defined and provided for
in this Agreement), all shares of Minority Stock shall be exchanged for, as more
particularly provided for and limited by the terms of this Agreement, Continuing
Corporation Common Stock. At and after the Effective Date, Minority Stock and
certificates representing shares of Minority Stock shall be deemed for all
purposes to evidence solely the right to receive Continuing Corporation Common
Stock, and the holders of Minority Stock shall, subject to any dissenters'
rights any holder may have, possess no right to vote, receive dividends or
distributions or any other consideration in respect of the Minority Stock.
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1.2 Consideration.
1.2.1 Purchase Price. Except as otherwise provided in this Agreement,
the aggregate consideration holders of Minority Stock will be entitled to
receive from Glacier in connection with the Exchange (the "Bank Purchase Price")
will be that number of shares of Continuing Corporation Common Stock calculated
by multiplying 620,000 by the number equal to one (1) minus HUB's fractional
ownership of Bank common stock at closing of the Merger as determined under
Subsection 1.3.1 of the Merger Agreement.
1.2.2 Exchange Ratio. The number of shares of Continuing Corporation
Common Stock each holder of Minority Stock will receive in exchange for each
share of Minority Stock will be determined according to a ratio (the "Bank
Exchange Ratio") computed as follows: in exchange for each share of Minority
Stock held of record on the Effective Date, the holder will receive that number
(rounded to two decimals, rounding down if the third decimal is four or less or
up if it is five or more) of Continuing Corporation Common Stock calculated by
dividing the Bank Purchase Price by the aggregate number of shares of Minority
Stock that on the Effective Date are issued and outstanding. The shares of
Continuing Corporation Common Stock to be issued under this Agreement in
connection with the Exchange are referred to as the "Glacier Shares".
1.2.3 No Fractional Shares. The Continuing Corporation will not issue
fractional shares of Continuing Corporation Common Stock. In lieu of fractional
shares, if any, each holder of Minority Stock who is otherwise entitled to
receive a fractional share of Continuing Corporation Common Stock in the
Exchange will receive an amount of cash equal to the product of such fraction
times the fair market value of a share of Glacier common stock at Closing. Such
fractional share interest will not include the right to vote or receive
dividends or any interest on dividends.
1.2.4 Certificates.
(a) Surrender of Certificates. Each certificate evidencing
Minority Stock (other than Dissenting Shares) will, on and after the
Effective Date, be deemed for all corporate purposes to represent and
evidence only the right to receive a certificate representing the
Glacier Shares (or to receive the cash for fractional shares) to which
the Minority Stock shares are exchanged in the Exchange in accordance
with the provisions of Section 1.2. Following the Effective Date,
Minority Stockholders may exchange certificates representing Minority
Stock by surrendering them to the agent (the "Exchange Agent")
designated by HUB and Glacier under the Merger Agreement to effect the
exchange of such certificate or certificates representing Glacier Shares
(or for cash in lieu of fractional shares) in accordance with any
instructions provided by the Exchange Agent and in accordance with the
letter of transmittal described in Section 1.4. Until a holder's
certificate evidencing Minority Stock is so surrendered for transfer,
the holder will not have the right to receive any certificates
evidencing Glacier Shares or cash in lieu of fractional shares.
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(b) Issuance of Certificates in Other Names. Any person requesting
that any certificate evidencing Glacier Shares be issued in a name other
than the name in which the surrendered Minority Stock certificate is
registered must:
(i) establish to the Exchange Agent's satisfaction the right
to receive the certificate evidencing Glacier Shares, and
(ii) either pay to the Exchange Agent any applicable transfer
or other taxes or establish to the Exchange Agent's satisfaction
that all applicable taxes have been paid or are not required.
(c) Lost, Stolen and Destroyed Certificates. The Exchange Agent
will be authorized to issue a certificate representing Glacier Shares in
exchange for a Minority Stock certificate that has been lost, stolen or
destroyed, if the holder provides the Exchange Agent with:
(i) satisfactory evidence that the holder owns Minority Stock
and that the certificate representing this ownership is lost,
stolen or destroyed,
(ii) any appropriate affidavit the Exchange Agent may
reasonably require, and
(iii) any indemnification assurances that the Exchange Agent
may reasonably require.
(d) Rights to Dividends and Distributions. After the Effective
Date, no holder of a certificate evidencing Minority Stock shares will
be entitled to receive any dividends or other distributions otherwise
payable to holders of record of Continuing Corporation Common Stock on
any date after the Effective Date, unless the holder:
(i) is entitled by this Agreement to receive a certificate
representing Glacier Shares, and
(ii) has surrendered in accordance with this Agreement her
Minority Stock certificates (or met the requirements of Section
1.2.4(c)) in exchange for certificates representing Glacier
Shares. Surrender of Minority Stock certificates will not deprive
the holder of any dividends or distributions that the holder is
entitled to receive as a record holder of Bank common stock on a
date before the Effective Date. When the holder surrenders her
Minority Stock certificates, the holder will receive the amount,
without interest, of any cash dividends and any other
distributions distributed on or after the Effective Date on the
whole number of shares of Glacier Shares into which the holder's
Minority Stock was exchanged at the Effective Date.
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(e) Checks in Other Names. Any person requesting that a check for
cash in lieu of fractional shares be issued in a name other than the
name the Minority Stock certificates surrendered in exchange for the
cash is registered in must establish to the Exchange Agent's
satisfaction the right to receive the cash.
1.3 Payment to Dissenting Stockholders. For purposes of this Agreement,
"Dissenting Shares" means those shares of Minority Stock as to which
stockholders have properly taken all steps necessary to perfect their
dissenters' rights under Montana Business Corporation Act (the "MBCA") Sections
35-1-826 through 35-1-839. Each outstanding Dissenting Share of Minority Stock
will be converted, at Closing, into the rights provided under those sections of
the MBCA. Holders of Dissenting Shares will receive from the Bank the
consideration they are entitled to under the MBCA.
1.4 Letter of Transmittal. Glacier will prepare a transmittal form
reasonably acceptable to Bank for use by stockholders holding Minority Stock.
Certificates representing shares of Minority Stock must be delivered for payment
or exchange in the manner provided in the transmittal letter form. On or about
the Effective Date, Glacier will mail the transmittal letter form to Minority
Stockholders.
1.5 Undelivered Certificates. If outstanding certificates for Minority
Stock are not surrendered or the payment for them is not claimed before these
payments would escheat or become the property of any governmental unit or
agency, the unclaimed items will, to the extent permitted by abandoned property
or other applicable law, become the property of the Continuing Corporation (and
to the extent not in its possession will be paid over to the Continuing
Corporation) free and clear of all claims or interests of any person previously
entitled to such items. But, neither the Continuing Corporation nor either party
to this Agreement will be liable to any holder of Minority Stock for any amount
paid to any governmental unit or agency having jurisdiction over any such
unclaimed items under the abandoned property or other applicable law of the
jurisdiction and the Continuing Corporation will pay no interest on amounts owed
to stockholders for shares of Minority Stock.
2. CLOSING OF THE TRANSACTION
2.1 Closing. Closing of the Exchange ("Closing") will occur on the
Effective Date and immediately following the Closing of the Merger as provided
in the Merger Agreement.
2.2 Events of Closing. On the Effective Date, all properly executed
documents required by this Agreement will be delivered to the proper party in
form consistent with this Agreement and Articles of Share Exchange will be
delivered and filed as required under the MBCA. If any party fails to deliver a
required document on the Effective Date or otherwise defaults under this
Agreement on or before the Effective Date, then the Exchange will not occur
unless the adversely affected party waives the default.
2.3 Place of Closing. Unless Glacier and Bank agree otherwise, Closing
will occur on the Effective Date at the time and place set for closing of the
Merger under the Merger Agreement.
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3. REPRESENTATIONS
3.1 Representations of Glacier. The representations of Glacier made and
set forth in the Merger Agreement for the benefit of HUB are herein restated and
made for the benefit of Bank pursuant to this Agreement.
3.2 Representations of Bank. Bank represents to Glacier the following:
3.2.1 Bank is a Montana corporation duly organized and validly
existing under the laws of the State of Montana and its activities do
not require it to be qualified in any jurisdiction other than Montana.
3.2.2 Bank has the requisite corporate power and authority to own or
lease its properties and assets and to carry on its business as it is
now being conducted.
3.2.3 Bank has the requisite corporate power and authority and has
taken all corporate action necessary in order to execute and deliver
this Agreement, subject only to the approval of Bank stockholders of the
Agreement and the Exchange to the extent required by the MBCA.
3.2.4 This Agreement is a valid and legally binding agreement of
Bank, enforceable in accordance with the terms of this Agreement.
3.2.5 The representations made by HUB in the Merger Agreement with
respect to the Bank are true in all respects.
4. CONDUCT AND TRANSACTIONS BEFORE CLOSING
4.1 Conduct of Bank Business Prior to Closing. Bank hereby accepts and
agrees to the requirements of the conduct of its business prior to Closing as
the same are set forth with respect to the Bank in Section 4 of the Merger
Agreement.
4.2 Preparation of Registration Statement. The Registration Statement
will provide for the registration of the Glacier Shares to be issued under this
Agreement with respect to the Exchange.
4.3 Regulatory Approvals. Glacier will promptly seek the approvals of
state and federal banking regulators having jurisdiction to approve of or
consent to the Exchange under this Agreement (the "Regulatory Approvals").
4.4 Submission to Shareholders. Bank will promptly take the actions
necessary in accordance with applicable law and its Articles of Incorporation
and Bylaws to convene a stockholders meeting to consider the approval of this
Agreement and to authorize the transaction contemplated by this Agreement. The
stockholders meeting will be held in conjunction with or promptly following the
meeting of HUB stockholders convened with respect to the Merger Agreement and
the Merger.
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4.5 Bank Cooperation With HUB. Bank shall cooperate with HUB in the
performance of HUB's obligations under the Merger Agreement to the extent such
obligations relate to the conduct of the business of the Bank or to the extent
HUB has undertaken an obligation to cause Bank to take or refrain from taking
certain actions.
5. CONDITIONS TO CONSUMMATION
5.1 Consummation of the Exchange under this Agreement and each of the
obligations of Bank and Glacier hereunder is expressly conditional upon:
(a) the consummation of the Merger under the Merger Agreement;
(b) the receipt by Glacier of all Regulatory Approvals
necessary or convenient for the consummation of the Exchange;
(c) the receipt by Glacier, at Glacier's expense, obtained
from Xxxxxx & Xxxx, P.C. and delivered to Bank, an opinion addressed
to Bank and in form and substance reasonably satisfactory to Bank
and its counsel, to the effect that the consummation of the Exchange
will not result in a taxable event for Bank or Glacier, and
otherwise will have each of the effects specified below:
(i) the Exchange will qualify as a reorganization within
the meaning of Internal Revenue Code ss.368(a)(1)(B);
(ii) under IRC ss.354, Bank stockholders who, in
accordance with this Agreement, exchange their Minority Stock
solely for Continuing Corporation Common Stock shares will not
recognize gain or loss on the exchange; and
(iii) cash payments to Bank stockholders in lieu of a
fractional share of Continuing Corporation Common Stock will
be treated as distributions in redemption of the fractional
share interest, subject to the limitations of IRC ss.302.
(d) Bank has obtained from Holland & Xxxx LLP and delivered to
Glacier an opinion of counsel, subject to customary
qualifications and assumptions, addressed to Glacier, to the
effect that:
(i) the Bank has the corporate power and authority to
execute, deliver and perform this Agreement, and
(ii) the execution, delivery and performance of this
Agreement will be authorized by all necessary corporate action
on the part of Bank and may be limited by bankruptcy,
insolvency, reorganization, moratorium, or similar laws
generally affecting the enforcement of the rights of creditors
and by generally applicable principles of equity, and
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(iii) the Agreement constitutes the Bank's valid, legal
and binding obligation and is enforceable in accordance with
its terms and is in compliance with corporate and banking laws
applicable to the Bank.
(e) Glacier has obtained from Xxxxxx & Xxxx, P.C. and
delivered to Bank an opinion, addressed to Bank, to the effect that:
(i) the execution, delivery and performance of this
Agreement have been duly authorized by all necessary corporate
action on Glacier's part, and this Agreement constitutes
Glacier's legal, binding and valid obligation, enforceable in
accordance with its terms, except to the extent that
enforcement (but not validity) may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws
generally affecting the enforcement of the rights of creditors
and by generally applicable principles of equity;
(ii) The Glacier Shares have been duly authorized and,
when issued as contemplated by this Agreement, will be validly
issued, fully paid and nonassessable, free of any preemptive
or similar rights arising under applicable corporate statutes
or under Glacier's bylaws or certificate of incorporation;
(iii) The Registration Statement became effective under
the Securities Act on __________________, 1998, and, to the
best of counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
threatened by the Securities and Exchange Commission; and
(iv) Glacier has the corporate power and authority to
execute, deliver and perform this Agreement.
(f) The Bank has received an opinion from Columbia Financial
Advisors, Inc. at such times as Bank may deem appropriate, but in
any event dated immediately prior to Closing, and to the effect that
the financial terms of the Exchange are financially fair to holders
of Minority Stock.
5.2 Glacier's consummation of the Exchange under this Agreement and each
of its obligations is expressly conditional upon the following:
(a) Bank has conformed and complied with all material terms,
covenants and conditions of this Agreement unless waived by Glacier.
(b) The Bank Board of Directors and Bank shareholders have
each approved the Exchange and this Agreement.
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(c) No act or event shall have occurred the effect of which,
upon consummation of the Exchange, would adversely affect the
ability of Glacier to account for the Merger as a "pooling of
interests" as contemplated by the Merger Agreement.
5.3 Bank's consummation of the Exchange and each of the obligations is
expressly conditional upon the following:
(a) Glacier has conformed and complied with all material
terms, covenants and conditions of this Agreement unless waived by
the Bank.
6. TERMINATION
6.1 Termination. This Agreement shall be terminated (a) without further
action by or on behalf of Glacier or Bank upon the termination of the Merger
Agreement by either party or for any reason or no reason under the Merger
Agreement, and (b) by written notice of either party upon the material failure
of any condition under Section 6.1. If this Agreement is terminated as provided
by this Section 6.1, such termination shall be without liability of any party,
or any shareholder, director, officer, employee, agent, consultant or
representative of such party, to any other party to this Agreement. No
termination or breakup fee or other payment or liability will result from or
become due by reason of any termination of this Agreement pursuant to this
Section 6.1. This Agreement may be terminated by Glacier and Bank by the mutual
written consent of Glacier and Bank by the action of their respective Boards of
Directors or authorized officers.
7. MISCELLANEOUS
7.1 Notices. Any notice, request, instruction or other document given
under this Agreement must be in writing and must either be delivered personally
or via facsimile transmission or be sent by registered or certified mail,
postage prepaid, and addressed as follows (or to any other address or person
representing any party as designated by that party through written notice to the
other party):
If to Glacier:
Glacier Bancorp, Inc.
000 Xxxx Xxxxxx
P. O. Xxx 00
Xxxxxxxxx, XX 00000-0000
Attention: Xxxx X. XxxXxxxxx
with a copy to:
Xxxxxxx X. Xxxxx, Esq.
Xxxxxx & Xxxx, P.C.
0000 Xxxxx Xxxxxx, 00" Xxxxx
Xxxxxxx, XX 00000-0000
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If to Bank:
Valley Bank of Helena
0000 Xxxxx Xxxxxxx Xxxxxx
P. O. Xxx 0000
Xxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxxxx
with a copy to:
Xxxxx X. Xxxxxxxx, Esq.
Holland & Xxxx LLP
Xxxxx 0000, 000 Xxxxx 00" Xxxxxx
P. O. Xxx 000
Xxxxxxxx, XX 00000-0000
7.2 Waivers and Extensions. Subject to Section 8, Glacier or Bank may
grant waivers or extensions to the other party, but only through a written
instrument executed by the Chief Executive Officer of the party granting the
waiver or extension. Waivers or extensions which do not comply with the
preceding sentence are not effective. In accordance with this Section 7.2, a
party may extend the time for the performance of any of the obligations or other
acts of any other party, and may waive:
(a) any inaccuracies of any other party in the representations
contained in this Agreement or the Merger Agreement or in any
document delivered in connection with this Agreement or the Merger
Agreement;
(b) compliance with any of the covenants of any other party;
and
(c) any other party's performance of any obligations under
this Agreement.
7.3 General Interpretation. Except as otherwise expressly provided in
this Agreement or unless the context clearly requires otherwise, the defined
terms defined in this Agreement include the plural as well as the singular.
Whenever the words "include", "includes", or "including" are used in this
Agreement, the parties intend them to be interpreted as if they are followed by
the words "without limitation". All pronouns used in this Agreement include the
masculine, feminine and neuter gender, as the context requires. All accounting
terms used in this Agreement that are not expressly defined in this Agreement
have the respective meanings given to them in accordance with GAAP.
7.4 Construction and Execution in Counterparts. Except as otherwise
expressly provided in this Agreement, this Agreement:
(a) contains the parties' entire understanding, and no
modification or amendment of its terms or conditions will be
effective unless in writing and signed by the parties, or their
respective duly authorized agents;
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(b) will not be interpreted by reference to any of the titles
or headings to the sections or subsections, which have been inserted
for convenience only and are not deemed a substantive part of this
Agreement;
(c) includes all amendments to this Agreement, each of which
is made a part of this Agreement by this reference; and
(d) may be executed in one or more counterparts, each of which
will be deemed an original, but all of which taken together will
constitute one and the same document.
7.5 Attorneys' Fees and Costs. In the event of any dispute or litigation
with respect to the terms and conditions or enforcement of rights or obligations
arising by reason of this Agreement or the transaction, the prevailing party in
any such litigation will be entitled to reimbursement from the other party for
its costs and expenses, including reasonable judicial and extra-judicial
attorneys' fees, expenses and disbursements, and fees, costs and expenses
relating to any mediation or appeal.
7.6 Arbitration. At either party's request, the parties must submit any
dispute, controversy or claim arising out of or in connection with, or relating
to, this Agreement or any breach or alleged breach of this Agreement, to
arbitration under the American Arbitration Association's rules when in effect
(or under any other form of arbitration mutually acceptable to the parties). A
single arbitrator agreed on by the parties will conduct the arbitration. If the
parties cannot agree on a single arbitrator, each party must select one
arbitrator and those two arbitrators will select a third arbitrator. This third
arbitrator will hear the dispute. The arbitrator's decision is final (except as
otherwise specifically provided by law) and binds the parties, and either party
may request any court having jurisdiction to enter a judgment and to enforce the
arbitrator's decision. The arbitrator will provide the parties with a written
decision naming the substantially prevailing party in the action. This
prevailing party is entitled to reimbursement from the other party for its costs
and expenses, including reasonable attorneys' fees.
7.7 Governing Law and Venue. This Agreement will be governed by and
construed in accordance with Montana law, except to the extent that certain
matters may be governed by federal law. The parties must bring any legal
proceeding arising out of this Agreement in Flathead County, Montana.
7.8 Severability. If a court determines that any term of this Agreement
is invalid or unenforceable under applicable law, the remainder of this
Agreement is not affected, and each remaining term is valid and enforceable to
the fullest extent permitted by law.
8. AMENDMENTS
8.1 At any time before the Effective Date, whether before or after the
parties have obtained any applicable stockholder approvals of the transaction,
the Boards of Directors of Glacier and Bank may:
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(a) amend or modify this Agreement or any attached Exhibit or
Schedule, and
(b) grant waivers or time extensions in accordance with
Subsection 7.2.
But, after Bank's stockholders have approved this Agreement, the parties' Boards
of Directors may not without Bank stockholder approval amend or waive any
provision of this Agreement if the amendment or waiver would reduce the amount
or change the form of consideration Bank stockholders will receive in the
transaction. All amendments, modification, extensions and waivers must be in
writing and signed by the party agreeing to the amendment, modification,
extension of waiver. Failure by any party to insist on strict compliance by the
other party with any of its obligations, agreements or conditions under this
Agreement, does not, without a writing, operate as a waiver or estoppel with
respect to that or any other obligation, agreement, or condition.
IN WITNESS WHEREOF, Glacier Bancorp, Inc. and Valley Bank of Helena have
caused this Agreement to be executed on the date first written above by their
duly authorized representatives.
GLACIER BANCORP, INC.
By: _____________________________________
Xxxx X. XxxXxxxxx
Its: Chairman, President and CEO
VALLEY BANK OF HELENA
By: _____________________________________
_____________________________________
Its: ________________________________
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