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EXHIBIT 2(ii)
MERGER AGREEMENT
This is a MERGER AGREEMENT dated _____________, 1994, between National
City Bancshares, Inc. (hereinafter called "NCBE") and United Financial Bancorp,
Inc. (hereinafter called "United").
WITNESSETH:
NCBE is a corporation duly organized under the laws of the State of
Indiana. Its principal office is located at 000 Xxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxx Xxxxxx, Xxxxxxx. As of September 30, 1994, NCBE had authorized
capital stock consisting of 5,000,000 shares of common stock, par value $3.33
1/3 per share, ("NCBE Common Stock") of which a total of 3,693,254 shares were
issued and outstanding and none were shares of treasury stock owned by NCBE.
NCBE owns all of the outstanding capital stock of The National City Bank of
Evansville, Evansville, Indiana; The Peoples National Bank of Grayville,
Grayville, Illinois; The Farmers and Merchants Bank, Fort Branch, Indiana,
First Kentucky Bank, Sturgis, Kentucky; Lincolnland Bank, Xxxx, Indiana; The
State Bank of Washington, Washington, Indiana; The Xxxxxxxx State Bank,
Spurgeon, Indiana; Pike County Bank, Petersburg, Indiana; and The Bank of
Mitchell, Mitchell, Indiana, (hereinafter referred to as "NCBE Banks") and NCBE
Leasing Corp., Evansville, Indiana; and
United is a corporation duly organized under the laws of the State of
Delaware. Its principal office is located at 000 Xxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxx. As of September 30, 1994, United had authorized capital stock
consisting of: (i) 2,000,000 authorized shares of common stock, $.01 par value
per share ("United Common Stock"), of which (a) 440,712 shares were issued and
outstanding; and (b) 19,288 were shares of treasury stock owned by United, and
(ii) 500,000 shares of preferred stock, none of which were either issued and
outstanding or were shares of treasury stock owned by United. United owns all
of the outstanding capital stock of United Federal Savings Bank of Vincennes, a
federal savings bank, (hereinafter referred to as "United Bank").
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The Board of Directors of NCBE and the Board of Directors of United,
respectively, have unanimously approved the entering into of this Merger
Agreement and have authorized the execution and delivery of this Merger
Agreement. From and after the time the merger of United into NCBE shall become
effective, the "Merger" as defined in Section 1 of this Merger Agreement, and
as and when required by this Merger Agreement, NCBE will issue shares of NCBE
Common Stock in exchange for all of the issued and outstanding shares of United
Common Stock in accordance with the provisions hereinafter set forth. It is
understood by each of the parties hereto that NCBE seeks to acquire United and
all of the operating assets of United including United Bank and the entities
and assets which United or United Bank own or may acquire prior to the time the
Merger shall become effective, through the Merger of United with and into NCBE
under the charter of NCBE. At the effective time of the Merger United Bank will
remain an independent operating subsidiary of NCBE. The parties will exert
their best efforts to obtain such regulatory approvals and to complete such
other actions as are necessary or appropriate to effect the Merger.
In consideration of mutual covenants and premises herein contained,
NCBE and United hereby make this Merger Agreement and prescribe the terms and
conditions of the Merger and the mode of carrying the Merger into effect as
follows:
1. Merger. Subject to the terms and conditions hereinafter set forth,
United shall be merged with and into NCBE under the Articles of
Incorporation of NCBE pursuant to and in accordance with the
applicable provisions of the laws of the States of Indiana and
Delaware.
2. Name. The name of the surviving corporation (hereinafter called the
"Surviving Corporation" whenever reference is made to it as of the
time the Merger shall become effective, as hereinafter provided, or
thereafter) shall be "National City Bancshares, Inc."
3. Business. The business of NCBE as the Surviving Corporation shall be
that of a financial institution holding company. The Surviving
Corporation shall exist by virtue of, and be governed by the laws of
the State of Indiana, shall have its registered office in Indiana at
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000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx Xxxxxx, Xxxxxxx and shall
have its principal office at that same location.
4. Effective Time of Merger: Articles of Merger. The Merger shall
become effective upon the filing of the appropriate Articles of Merger
with the appropriate state authorities (the "time the Merger shall
become effective") in accordance with applicable provisions of the
laws of the States of Indiana and Delaware.
The Articles of Incorporation of NCBE in effect immediately prior to
the time the Merger shall become effective, shall be the Articles of
Incorporation of the Surviving Corporation, and the Bylaws of NCBE in
effect immediately prior to the time the Merger shall become
effective, shall be the Bylaws of the Surviving Corporation.
5. Effect of Merger. At the time the Merger shall become effective, the
separate corporate existence of United and NCBE, respectively, shall,
in accordance with applicable provisions of the laws of the State of
Indiana and the State of Delaware, be merged into and continued in
NCBE as the Surviving Corporation with the effect as provided by
Section 23-1-40-6 of the Indiana Business Corporation Law and the
provisions of Section 252 of the Delaware General Business Corporation
Law.
6. Liabilities upon Merger. The Surviving Corporation shall be
responsible for all of the liabilities and obligations of each of the
corporations so merged in the same manner and to the same extent as if
such single corporation had itself incurred the same or contracted
therefore.
7. Conversion of Shares.
(a) At the time the Merger shall become effective;
(i) All of the outstanding shares of United Common Stock,
other than Dissenting Shares (as defined in Section
11 hereof), shall be converted into and exchanged for
shares of NCBE Common Stock (or cash for fractional
shares) in accordance with the Exchange Ratio (as
defined herein). In determining the total number of
shares of NCBE Common
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Stock to be issued to shareholders of United, the
value of each share of NCBE Common Stock shall be the
average price per share of NCBE Common Stock for the
twenty business days immediately preceding the
effective date of the Merger (the "Average Price").
For purposes hereof, Average Price shall be based
upon information reported by the NASDAQ National
Market System, and shall mean with respect to NCBE
Common Stock, the quotient resulting from: (a) the
sum of the product of; (i) the numerical average of
the reported high and low price per share, for each
of the twenty business days immediately preceding the
effective date of the Merger; times (ii) the total
number of shares of NCBE Common Stock traded on each
of such business days, respectively; divided by (b)
the aggregate number of shares traded during such
twenty business day period, provided that should the
Average Price be less than $40.50 per share, then
$40.50 per share shall be utilized as the Average
Price. Should the Average Price be more than $49.50
per share, then $49.50 shall be utilized as the
Average Price.
(ii) Notwithstanding the foregoing, the dollar amounts and
the 10% range set forth in the preceding two
sentences shall be appropriately adjusted to reflect
any recapitalization, reorganization, split-up,
merger, consolidation, exchange, stock or other
dividend or distribution (other than regular
quarterly cash dividends) made, declared or effective
on a pro-rata basis with respect to all issued and
outstanding NCBE Common Stock (a "Stock Adjustment")
arising between the date hereof and the time the
Merger becomes effective. Provided however, that in
the event a Stock Adjustment (as herein defined)
occurs during the trading days described above then
the trading days for the period prior to the Stock
Adjustment will be eliminated in calculating the
Average Price.
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(iii) The outstanding shares of United Common Stock other
than Dissenting Shares shall, at the time the Merger
shall become effective, automatically and without any
act or deed on the part of the holder thereof be
converted into and exchangeable for (x) newly issued,
fully paid and non-assessable whole shares of NCBE
Common Stock at the Exchange Ratio and (y) cash in
lieu of any fractional shares of NCBE Common Stock as
provided in Section 7(b) hereof. The "Exchange
Ratio" means the number resulting from dividing
$44.40 by the Average Price, rounded to the sixth
decimal place, appropriately adjusted for any stock
dividends or stock splits with respect to United
Common Stock after the date of this Merger Agreement.
(iv) Each of the shares of United Common Stock, if any,
held by United in its treasury immediately prior to
the time the Merger shall become effective shall be
canceled; and
(v) The shares of NCBE Common Stock issued and
outstanding immediately prior to the time the Merger
shall become effective shall continue to be issued
and outstanding shares of the Surviving Corporation.
(b) No fractional shares or scrip representing fractional shares
of NCBE Common Stock will be issued by NCBE in connection with
the Merger, but in lieu thereof, any holder of United Common
Stock shall, upon surrender of the certificate or certificates
formerly representing such United Common Stock, be paid cash,
without interest, by NCBE for such fractional share(s). The
cash paid for fractional shares shall be based upon the
Average Price.
(c) As soon as practicable after the time the Merger shall become
effective, and subject to the provisions set forth above
relating to the fractional shares, the Trust Department of The
National City Bank of Evansville, will distribute to the
former holders of United Common Stock in exchange for and upon
surrender for cancellation by such holders of a certificate or
certificates formerly representing
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shares of United Common Stock the certificate(s) for newly
issued, fully paid and non-assessable shares of NCBE Common
Stock in accordance with the Exchange Ratio and any cash
payment in lieu of fractional shares. Each certificate
formerly representing United Common Stock (other than
certificates representing Dissenting Shares) shall be deemed
for all purposes to evidence the ownership of the number of
whole shares of NCBE Common Stock and cash for fractional
share interests in NCBE Common Stock into which such shares
have been converted pursuant to the Exchange Ratio.
Certificates representing shares of United Common Stock held
by a shareholder of United, shall be aggregated together in
determining the fractional share for which such shareholder
shall receive cash as provided for herein. Until surrender of
the certificate or certificates formerly representing shares
of United Common Stock, the holder thereof shall not be
entitled to receive any dividend or other payment or
distribution payable to holders of NCBE Common Stock. Upon
such surrender (or in lieu of surrender other provisions
reasonably satisfactory to NCBE as are made as set forth
herein below), there shall be paid to the person entitled
thereto the aggregate amount of dividends or other payments or
distributions (in each case without interest) which became
payable after the time the Merger shall become effective on
the whole shares of NCBE Common Stock represented by the
certificates issued upon such surrender and exchange or in
accordance with such other provisions, as the case may be.
Certificates formerly representing shares of United Common
Stock surrendered for cancellation by each shareholder
entitled to exchange shares of United Common Stock for shares
of NCBE Common Stock by reason of the Merger shall be
accompanied by such customary instruments of transfer as NCBE
may reasonably require, provided, however, that if there be
delivered to NCBE by any person who is unable to produce any
such certificate formerly representing shares
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of United Common Stock for transfer (i) evidence to the
reasonable satisfaction of NCBE that any such certificate has
been lost, wrongfully taken or destroyed, and (ii) such
indemnity agreement as reasonably may be requested by NCBE to
save it harmless, and (iii) evidence to the reasonable
satisfaction of NCBE that such person is the owner of the
shares theretofore represented by each certificate claimed by
him to be lost, wrongfully taken or destroyed and that he is
the person who would be entitled to present each such
certificate and to receive shares of NCBE Common Stock
pursuant to this Merger Agreement, then NCBE, in the absence
of actual notice to it that any shares theretofore represented
by any such certificate have been acquired by a bona fide
purchaser, shall deliver to such person the certificate(s)
representing shares of NCBE Common Stock which such person
would have been entitled to receive upon surrender of each
such lost, wrongfully taken or destroyed certificate
representing shares of United Common Stock.
8. Board of Directors. The Board of Directors of NCBE as constituted at
the time the Merger shall become effective and Xxxxxx X. Xxxxxxx shall
serve as the Board of Directors of NCBE as the Surviving Corporation.
The Board of Directors of NCBE will, at the time the Merger shall
become effective, appoint and elect Xxxxxx X. Xxxxxxx as a Director of
NCBE for the longest term available under NCBE's Articles of
Incorporation and Bylaws.
9. Discussions with Others. United or its officers, directors or agents
will not directly or indirectly, solicit, authorize, initiate or
encourage submission of, any proposal, offer, tender offer or exchange
offer from any person relating to any liquidation, dissolution,
recapitalization, merger, consolidation or acquisition or purchase of
all or a substantial portion of the assets or deposits of, or any
material equity interest in, United or any of its wholly-owned
subsidiaries or other similar transaction or business combination
involving United or any of its wholly-owned subsidiaries while this
Agreement is pending, unless
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the Board of Directors of United shall have determined, after
consultation with United's outside counsel, that there is a reasonable
likelihood that the Board of Directors of United has a fiduciary duty
to do so (or to authorize or direct the United's officers or agents to
do so), (a) participate in any negotiations in connection with or in
furtherance of any of the foregoing, (b) permit any person other than
NCBE and its representatives to have any access to the facilities of,
or (c) furnish to any person other than NCBE and its representatives
any non-public information with respect to, United or any of its
wholly-owned subsidiaries in connection with or in furtherance of any
of the foregoing. United shall promptly notify NCBE if any such
proposal or offer, or any inquiry from or contact with any person with
respect thereto, is made, and shall promptly provide NCBE with such
information regarding the identity of the person making such proposal,
offer, inquiry or contact as NCBE may reasonably request. Nothing
herein shall be deemed to prohibit United or its Board of Directors
from complying with Rules 14d-9 and 14e-2 under the Securities
Exchange Act of 1934 (the "1934 Act") or with any other applicable
laws, regulations or directives of any public authority, or from
making any disclosure to the United's shareholders which, in the
judgment of its Board of Directors, may be required under applicable
law.
10. Undertakings of the Parties. NCBE and United further agree as
follows:
(a) Subject to the fiduciary duty of the United Board of
Directors, this Merger Agreement shall be submitted to the
shareholders of United and, if required, to the shareholders
of NCBE, for approval and adoption at separate meetings to be
called and held in accordance with law and the Articles or
Certificate of Incorporation and Bylaws of United and NCBE.
(b) NCBE and United will cooperate in the preparation of
applications to the Board of Governors of the Federal Reserve
System (the "Board") and The Office of Thrift Supervision (the
"OTS") and to any other state or federal regulatory agency
which may be required to facilitate the Merger. For the
purpose (i) of holding meetings
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of shareholders of United and NCBE, if required, to approve
this Merger Agreement and the Merger and (ii) of registering
with the Securities and Exchange Commission ("SEC") and with
applicable state securities authorities the NCBE Common Stock
to be issued as contemplated by this Merger Agreement, the
parties hereto shall cooperate in the preparation of an
appropriate registration statement (such registration
statement, together with all and any amendments and
supplements thereto, being herein referred to as the
"Registration Statement"), which shall include a
prospectus/proxy statement satisfying all applicable
requirements of the Securities Act of 1933 (the "1933 Act"),
the 1934 Act, applicable state securities laws and the rules
and regulations thereunder (such prospectus/proxy statement,
together with any and all amendments or supplements thereto,
being herein referred to as the "Prospectus/Proxy Statement").
United shall have the right to review and approve such
Registration Statement prior to filing with the SEC. NCBE
shall promptly file the Registration Statement with the SEC
and applicable state securities agencies. NCBE shall use
reasonable efforts to cause the Registration Statement to
become effective under the 1993 Act and applicable state
securities laws at the earliest practicable date. United
authorizes NCBE to utilize in the Registration Statement
information concerning United, its wholly-owned subsidiaries,
and its securities provided to NCBE for the purpose of
inclusion in the Prospectus/Proxy Statement. NCBE shall
advise United promptly when the Registration Statement has
become effective and of any supplements or amendments thereto,
and NCBE shall furnish United with copies of all such
documents. Prior to the time the Merger shall become
effective or the termination of this Merger Agreement, each
party shall consult with the other with respect to any
material (other than the Prospectus/Proxy Statement) that
might constitute a "prospectus" relating to the Merger within
the meaning of the 1933 Act.
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(c) Each party will assume and pay all of its fees and expenses
incurred by it incident to the negotiation, preparation and
execution of this Merger Agreement, obtaining of the requisite
regulatory and shareholder consents and approvals and all
other acts incidental to, contemplated by or in pursuance of
this Merger Agreement. NCBE shall promptly prepare and file
at no expense to United: (i) any and all required regulatory
applications necessary in connection with the transactions
contemplated by this Merger Agreement; and (ii) the
Registration Statement. NCBE will also take any action
required to be taken under any applicable state securities or
"Blue Sky" laws in connection with the Merger.
(d) All information furnished by one party to another party in
connection with this Merger Agreement and the transactions
contemplated hereby will be kept confidential by such other
party and will be used only in connection with this Merger
Agreement and the transactions contemplated hereby, except to
the extent that such information: (i) is already known to
such other party when received; (ii) thereafter becomes
lawfully obtainable from other sources; or (iii) is required
to be disclosed in any document filed with the SEC, the Board,
or any other governmental agency or authority (the
"Confidential Information"). In the event that this Merger
Agreement is terminated, each party will return to the other
party or destroy any documents received by it from the other
party that contain any such Confidential Information.
(e) After (i) receipt of the Board's and the OTS's prior approval,
(ii) the approval of the shareholders of United and, if
required NCBE, as provided in Section 10(a) has occurred; and
(iii) the regulatory waiting period(s) have expired, NCBE
shall designate the date as of which NCBE desires the Merger
to become effective and the time the Merger shall become
effective shall occur at the time and on the date so
designated, consistent with the terms of Section 4 hereof.
However, any date so specified shall not be later than either
(a) the first of the month immediately
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following the month in which the last of the events described
above (i-iii) occurs if said event occurs before the
twenty-first day of such month or (b) the first day of the
second month immediately following such month if the last of
the events described above occurs after the twentieth day of
such month.
(f) Subject to the terms and conditions of this Merger Agreement,
NCBE and United each agree that, subject to applicable laws
and, in the case of United only, to the fiduciary duties of
its Directors, each will promptly take or cause to be taken
all action, and promptly do or cause to be done all things
necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the Merger and
other transactions contemplated by this Merger Agreement.
(g) As soon as practicable following the time the Merger shall
become effective, eligible employees of United and United
Bank shall be entitled to participate in all employee benefit
plans of NCBE. For purposes of eligibility and vesting in:
(i) the NCBE Employees' Profit Sharing Plan ("NCBE Profit
Plan") and, (ii) in the event of the merger of the Financial
Institutions Retirement Fund ("FIRF") pension plan sponsored
by United (the "United Pension Plan") with the NCBE's
Employees' Plan for Pensions (the "NCBE Pension Plan"), the
NCBE Pension Plan, employees of United and United Bank shall
be given credit for their years of service as employees of
United or United Bank. Subject to the foregoing, and provided
that the United Pension Plan is merged with the NCBE Pension
Plan, employees of United and United Bank shall begin to
accrue credit for benefit accruals under the NCBE Pension Plan
at the earliest entry date (January 1 or July 1) following the
effective time of the Merger without offset or reduction for
the benefits they had accrued under the United Pension Plan.
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In the event that the United Pension Plan is terminated at the
direction of NCBE as hereinafter provided for, employees of
United shall, for purposes of eligibility, vesting and benefit
accrual under the NCBE Pension Plan, be considered new
employees of NCBE. In the event that such employees shall not
commence accruing credit for benefit accrual purposes upon the
commencement of employment with NCBE, then they shall continue
to accrue benefits under the United Pension Plan until such
time as they shall be entitled to commence the accrual of
benefits under the NCBE Pension Plan without offset or
reduction for the benefits they had accrued under the United
Pension Plan.
(h) At the request of NCBE, United shall, prior to the time the
Merger shall become effective, take such actions as shall be
necessary or desirable to cause the United Pension Plan and
the FIRF Thrift Plan sponsored by United and United Bank (the
"United 401(k) Plan") to be terminated at or after the
effective date of Merger and/or be merged with the NCBE
Pension Plan and the NCBE Profit Plan, respectively, in
accordance with the applicable requirements of ERISA. In all
events, the United and United Bank employees who participate
in the United Pension Plan and/or the United 401(k) Plan shall
incur no reduction in their account balance or accrued benefit
or lose any rights or benefits they had accrued under the
United Pension Plan and/or the United 401(k) Plan prior to
such termination or merger. In the event that the United
Pension Plan and the NCBE Pension Plan are not merged and
employees of United are considered new employees of NCBE on
the effective date of the Merger for purposes of determination
of eligibility and vesting under the NCBE Pension Plan, then
the United Pension Plan shall, subject to the provisions of
ERISA, be continued in effect for the employees of United and
United Bank (solely with respect to those persons employed as
of the effective date of the Merger) until such persons are
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eligible on the basis of length of service to accrue benefits
under the NCBE Pension Plan on the same basis as the
employees of NCBE.
(i) Subject to the fiduciary duty of the NCBE Board of Directors,
NCBE undertakes to cause, immediately after the effective
date of the Merger the continuance as Directors of United Bank
to January, 1996, with at least the same compensation and
benefits, subject to any retirement policies of NCBE or United
Bank as in effect as of the date of this Agreement, all those
persons serving as Directors of such bank immediately prior to
the effective time of the Merger, plus one additional person
to be named by NCBE may be added to the Board of Directors of
United Bank.
(j) NCBE will maintain "current public information" within the
meaning of Rule 144 for three (3) years following the
effective date.
(k) NCBE, United, and their Directors and Executive Officers shall
not cause any transactions in NCBE Common Stock during the 20
business days immediately preceding the effective date of the
Merger.
(l) NCBE shall assume and maintain the non-qualified deferred
compensation plan for the directors of United Bank who
currently participate in the aforesaid plan and shall permit
such directors who currently participate in such plan to
continue to defer their directors' fees on a tax-deferred
basis in the same amount currently being deferred until June
30, 1998. After June 30, 1998, the amount of United Bank
directors' fees that had been deferred by Xxxxxx Xxxxxxx shall
be paid to her as part of her annual salary.
(m) NCBE shall, at such time as is recommended by its accountants,
McGladrey and Xxxxxx, sell approximately 75,000 shares of its
common stock acquired by it during 1994, pursuant to its stock
repurchase program. NCBE shall use its best efforts to cause
such sale to remove any "taint" attached to such shares which
taint may make pooling of interest accounting for the Merger
unavailable.
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(n) United shall use its best efforts to cause the termination of
the United Bank employment contacts with Xxxxxx X. Xxxxxxx, G.
Xxxxxxx Xxxxxx and Xxxxxxx X. Xxxxxxx at or immediately prior
to the effective time of the Merger.
11. Dissenting Shareholders. Holders of United Common Stock who do not
vote their shares in favor of the Merger and otherwise comply in all
respects to perfect dissenters' rights with respect to their shares
("Dissenting Shares"), will be entitled to dissenters' or appraisal
rights, if any, pursuant to and solely upon strict compliance with,
the applicable provisions of Delaware law.
12. Tax Opinion. NCBE, for the benefit of the United shareholders shall
obtain a written opinion of Xxxxxx & Blank Co., L.P.A. to the effect
that:
(a) The statutory merger of United with and into NCBE will
constitute a reorganization within the meaning of Section
368(a)(1)(A) of the Internal Revenue Code;
(b) No gain or loss will be recognized by United or NCBE as a
consequence of the transactions herein contemplated;
(c) No gain or loss will be recognized by the shareholders of
United on the exchange of their shares of United Common Stock
for shares of NCBE Common Stock (disregarding for this purpose
any cash received for fractional share interests to which they
may be entitled);
(d) The federal income tax basis of the NCBE Common Stock received
by the shareholders of United Common Stock for their shares of
United Common Stock will be the same as the federal income tax
basis of the United Common Stock surrendered in exchange
therefor; and
(e) The holding period of the NCBE Common Stock received by a
shareholder of United for his shares of United Common Stock
will include the period for which the United Common Stock
exchanged therefor was held, provided the exchanged
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United Common Stock was held as a capital asset by such
shareholder on the date of the exchange.
13. Representations and Warranties of NCBE. NCBE represents and warrants
to United as follows:
(a) NCBE is a corporation duly organized and validly existing
under the laws of the State of Indiana, is a registered bank
holding company under the Bank Holding Company Act of 1956, as
amended, and is qualified to do business in the State of
Indiana, together with all other jurisdictions where it is
both required to so qualify and the failure to so qualify
would have a Material Adverse Effect on NCBE. For purposes of
this Merger Agreement, the term "Material Adverse Effect"
means, with respect to either NCBE or United, any condition,
event, change or occurrence that has caused a material adverse
change in the business, operations, results of operations or
financial condition of such entity and its wholly-owned
subsidiaries on a consolidated basis, but shall not include
(i) an adverse change with respect to, or effect on, such
entity or its wholly-owned subsidiaries resulting from a
change in law, rule, regulation, generally accepted accounting
principles or regulatory accounting principles (as such would
apply to the financial statements of such entity), (ii) an
adverse change with respect to, or effect on, such entity
resulting from expenses incurred in connection with this
Agreement or the transactions contemplated hereby, or (iii) an
adverse change with respect to, or effect on, such entity or
its wholly-owned subsidiaries resulting from any other matter
affecting federally insured depository institutions or their
holding companies, regulated mortgage lenders or mortgage
originators generally, including (without limitation) judicial
decisions, changes in general economic conditions and changes
in prevailing interest and deposit rates. NCBE has full power
and authority (including all licenses, franchises, permits and
other governmental authorizations which are legally required)
to engage in the
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businesses and activities now conducted by it. As of
September 30, 1994, the authorized capital stock of NCBE
consisted of 5,000,000 shares of common stock, par value $3.33
1/3 per share of which a total of 3,693,254 shares were issued
and outstanding and no shares were held by NCBE as treasury
stock. All of said shares of capital stock are fully paid and
nonassessable and are not issued in violation of the
preemptive rights of any shareholder. There are no
outstanding options, warrants or commitments of any kind
relating to NCBE's capital stock.
(b) NCBE has furnished to United copies of the following financial
statements relating to NCBE and its consolidated subsidiaries:
(i) the audited Consolidated Balance Sheets of NCBE as of
December 31, 1993 and 1992 and the Consolidated Statements of
Income, Shareholders' Equity and Statements of Cash Flows for
the years ended December 31, 1993, 1992, and 1991, together
with the notes thereto, and (ii) the unaudited Consolidated
Balance Sheet of NCBE as of September 30, 1994, and the
unaudited Consolidated Statements of Income and Shareholders'
equity for the period then ended. Each of the aforementioned
financial statements was prepared in accordance with generally
accepted accounting principles, consistently applied and is
true and correct in all material respects and together present
fairly the consolidated financial position and results of
operations of NCBE as of the dates and for the periods therein
set forth (subject, in the case of such interim financial
statements, to normal year-end audit adjustments and to the
absence of footnotes), except for the effect of the pending
acquisition of White County Bank, Carmi, Illinois, pursuant to
the terms of an Agreement and Plan of Reorganization dated
December 12, 1994. Such financial statements do not, as of
the dates thereof, include any material asset or omit any
material liability, absolute or contingent, or other fact, the
inclusion or omission of which renders such financial
statements, in light of the circumstances under which they
were
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made, misleading in any material respect. Since December 31,
1993, NCBE has not suffered a Material Adverse Effect.
(c) The Board of Directors of NCBE has authorized execution of
this Merger Agreement and approved the merger of United and
NCBE as contemplated by this Merger Agreement. NCBE has all
requisite power and authority to enter into this Merger
Agreement and NCBE has the authority to consummate the
transactions contemplated hereby. This Merger Agreement
constitutes the valid and legally binding obligation of NCBE
and this Merger Agreement and the consummation hereof has been
duly authorized and approved on behalf of NCBE by all
requisite corporate action. Provided the required approvals
are obtained from the Board and OTS, neither the execution and
delivery of this Merger Agreement nor the consummation of the
Merger will conflict with, result in the breach of, constitute
a default under or accelerate the performance provided by the
terms of any law, or any rule or regulation of any
governmental agency or authority or any judgment, order or
decree of any court or other governmental agency to which NCBE
may be subject, any contract, agreement or instrument to which
NCBE is a party or by which NCBE is bound or committed, or the
Articles of Incorporation or Bylaws of NCBE, or constitute an
event which with the lapse of time or action by a third party,
could, to the best of NCBE's knowledge, result in the default
under any of the foregoing or result in the creation of any
lien, charge or encumbrance upon any of the assets or
properties of NCBE or upon any of the stock of NCBE, except,
however, in the case of contracts, agreements or instruments,
such defaults, conflicts or breaches which either (i) will be
cured or waived prior to the time the Merger becomes
effective, or (ii) if not so cured or waived would not, in the
aggregate, have a Material Adverse Effect on NCBE.
(d) There is no litigation, action, suit, investigation or
proceeding pending or, to the best of its knowledge after due
inquiry of its executive officers, threatened,
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against or affecting NCBE or its wholly-owned subsidiaries or
involving any of their respective properties or assets, at law
or in equity, before any federal, state, municipal, local or
other governmental authority, involving a material amount
which, if resolved adversely to the interest of NCBE or its
subsidiaries, would materially affect the consolidated
financial condition or operations of NCBE and its wholly-owned
subsidiaries or its ability to perform under this Merger
Agreement, and to the best of its knowledge and belief after
due inquiry of its executive officers, no one has asserted and
no one has reasonable or valid grounds on which it reasonably
can be expected that anyone will assert any such claims
against NCBE or its wholly-owned subsidiaries based upon the
wrongful action or inaction of NCBE or its subsidiaries or any
of their respective officers, directors or employees.
(e) At the time the Merger shall become effective and on such
subsequent date when the former shareholders of United
surrender their United share certificates for cancellation,
the shares of NCBE Common Stock to be received by shareholders
of United will have been duly authorized and validly issued by
NCBE, will be fully paid and nonassessable, and the
Registration Statement and all amendments with respect thereto
shall have been declared effective by the SEC with respect to
the shares of NCBE Common Stock to be received by the
shareholders of United.
(f) NCBE has not incurred and will not incur directly or
indirectly any liability for brokerage, finders', agents' or
investment bankers' fees or commissions in connection with
this Merger Agreement or the transactions contemplated
thereby.
(g) The Employees' Savings and Profit Sharing Plan of National
City Bancshares, Inc. and the Plan for Pensions of National
City Bancshares, Inc. (hereinafter referred to collectively as
the "plans") which purports to be a qualified plan under
Section 401(a) of the Internal Revenue Code is so qualified
and is in compliance in all material respects with the
applicable requirements of the Employee
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Retirement Income Security Act of 1974, as amended ("ERISA").
All material notices, reports and other filings required under
applicable law to be given or made to or with any governmental
agency with respect to the plans have been timely filed or
delivered where failure to file will result in a penalty or
result in disqualification of the plan. NCBE has no knowledge
either of any circumstances which would adversely affect the
qualifications of the plans or their compliance with the
applicable requirements of ERISA, or of any "reportable event"
(as such term is defined in Section 4043(b) of ERISA) or any
"prohibited transaction" (as such term is defined in Section
406 of ERISA and Section 4975(c) of the Internal Revenue Code)
which has occurred since the date on which said section became
applicable to the plans. The plans which are defined benefit
plans within the meaning of ERISA meet the minimum funding
standards set forth in the Internal Revenue Code and ERISA.
(h) NCBE has filed all reports, forms and registration statements
(collectively, "SEC Documents") required to be filed by it
pursuant to the 1933 Act, as amended, and the 1934 Act, as
amended for periods ending after January 1, 1985, and such SEC
Documents complied in all material respects with the 1933 Act
and the 1934 Act and all applicable rules and regulations
promulgated thereunder (the "SEC Laws"). NCBE has delivered
to United copies of the Annual Report on Form 10-K filed with
the Securities and Exchange Commission by NCBE for its fiscal
years ended December 31, 1993, 1992, and 1991 including
exhibits and all documents incorporated by reference therein,
and the proxy materials disseminated by NCBE to its
shareholders in connection with the 1994 Annual Meeting of
Shareholders of NCBE; such Annual Report and proxy materials
do not misstate a material fact or omit to state a material
fact necessary in order to make the statements contained
therein, in light of the circumstances under which they are
made, not misleading.
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20
(i) Since December 31, 1993, each of NCBE and its subsidiaries has
conducted business only in the ordinary course, and has
preserved its corporate existence, business and goodwill
intact, except for the sale during 1994, by NCBE of its
interest in its non-bank subsidiary, Xxxx-Xxxxxxx-Deal
Insurance Agency, Inc., and the merger of two of its wholly
owned subsidiary banking corporations, namely, Xxxxx Deposit
Bank and Farmers State Bank, which merger was effective
December 1, 1994.
(j) NCBE and the NCBE Banks each have good and marketable title to
all assets and properties, whether real or personal, tangible
or intangible, including without limitation the capital stock
of the NCBE Banks and all other assets and properties
reflected as owned by it or them in NCBE's Balance Sheet of
September 30, 1994, or acquired subsequent thereto (except to
the extent that such assets and properties have been disposed
of for fair value in the ordinary course of business since
September 30, 1994) subject to no liens, mortgages, security
interests, encumbrances, pledges or charges of any kind,
except: (i) those items that secure liabilities that are
reflected in said Balance Sheet; (ii) statutory liens for
taxes not yet delinquent; and (iii) minor defects and
irregularities in title and encumbrances which do not
materially impair the use thereof for the purposes for which
they are held; and such liens, mortgages, security interests,
encumbrances and charges which are not in the aggregate,
material to the assets and properties of NCBE. NCBE or the
NCBE Banks as lessee has the contractual right under valid
leases to occupy, use, possess and control all material
property leased by NCBE or the NCBE Banks.
(k) To the best of its knowledge after due inquiry of its
executive officers, NCBE and the NCBE Banks have complied with
all laws, regulations and orders applicable to them and to the
conduct of their businesses, including without limitation, all
statutes, rules and regulations pertaining to the conduct of
banking activities
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21
except for possible technical violations which together with
any penalty which results therefrom are or will be of no
material consequence to either NCBE or the NCBE Banks.
Neither NCBE nor any of the NCBE Banks are the subject of, nor
a party to, any regulatory action or agreement such as letter
agreements, memorandum of understanding, cease and desist
orders or like agreements. Neither NCBE nor the NCBE Banks
are in default under, and no event has occurred which, with
the lapse of time or action by a third party, could, to the
best of NCBE's knowledge after due inquiry of its executive
officers, result in the default under the terms of any
judgment, decree, order, writ, rule or regulation of any
governmental authority or court, whether federal, state or
local and whether at law or in equity, where the default(s)
could reasonably be expected to have a Material Adverse Effect
on NCBE.
(l) NCBE has duly filed all federal, state, county and local
income, excise, real and personal property and other tax
returns and reports (including, but not limited to, social
security, withholding, unemployment insurance, and sales and
use taxes) required to have been filed by NCBE up to the date
hereof (excluding any return or report for which a current
valid extension is in effect. To the best of the knowledge
and belief of NCBE after due inquiry of its executive
officers, all such returns are true and correct in all
material respects, and NCBE has paid or, prior to the time the
Merger shall become effective, will pay all taxes, interest
and penalties shown on such return or reports or claimed
(other than those claims being contested in good faith and
which have been disclosed to United) to be due to any federal,
state, county, local or other taxing authority, and there is,
and at the time the Merger shall become effective will be, no
basis known to the executive officers of NCBE for any
additional claim or assessment which might result in a
Material Adverse Effect on NCBE, and for which an adequate
reserve has not been established. To the best of its
knowledge and belief after due inquiry of its
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22
executive officers, NCBE has paid or made adequate provision
in its financial statements or its books and records for all
taxes payable in respect of all periods ending as of the date
thereof. To the best of its knowledge and belief after due
inquiry of its executive officers, NCBE has, or at the time
the Merger shall become effective will have, no material
liability for any taxes, interest or penalties of any nature
whatsoever, except for those taxes which may have arisen up to
the time the Merger shall become effective in the ordinary
course of business and are properly accrued on the books of
NCBE as of the time the Merger shall become effective.
(m) To the best of its knowledge and belief, but without having
undertaken an environmental audit or investigation, NCBE has
no knowledge of any underground storage tanks, any hazardous
substances, hazardous waste, pollutant or contaminant,
including, but not limited to, asbestos (except as previously
disclosed to United in a letter of even date herewith), PCB's
or urea formaldehyde, having been generated, released into,
stored or deposited over, upon or below (in storage tanks or
otherwise) any real property currently or to be owned or
leased by NCBE or any of its wholly-owned subsidiaries, or
into any water systems on or below the surface any real
property currently or to be owned or leased by NCBE or any of
its wholly-owned subsidiaries from any source whatsoever. As
used in this Merger Agreement, the terms "hazardous
substance," "hazardous waste," "pollutant" and "contaminant"
mean any substance, waste pollutant or contaminant included
within such terms under any applicable Federal, state or local
statute or regulation.
(n) NCBE and the NCBE Banks have in effect insurance coverage with
reputable insurance underwriters, which in respect of amounts,
premiums, types and risksinsured, constitutes reasonably
adequate coverage against all risks
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23
customarily insured against by companies comparable in size
and operation to NCBE and the NCBE Banks.
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24
14. Representations and Warranties of United. United represents and
warrants to NCBE as follows:
(a) United is a corporation duly organized and validly existing in
good standing under the laws of the State of Delaware, is a
registered savings and loan holding company under the Home
Owners' Loan Act, as amended. United has full power and
authority (including all licenses, franchises, permits and
other governmental authorizations which are legally required)
to engage in the businesses and activities now conducted by
it. As of the date of this Merger Agreement, the authorized
capital stock of United consists of; (i) 2,000,000 shares of
common stock with $.01 par value, of which a total of 440,712
shares are issued and outstanding and of which 19,288 are
shares of treasury stock owned by United, and (ii) 500,000
shares of preferred stock, none of which are either issued and
outstanding or are shares of treasury stock owned by United.
All of said shares of capital stock are fully paid and
nonassessable and are not issued in violation of the
preemptive rights of any shareholder. There are no
outstanding options, warrants or commitments of any kind
relating to United's capital stock except options to purchase
26,698 shares of United Common Stock at a price of $10.00 per
share issued pursuant to United's 1992 Stock Option and
Incentive Plan adopted in 1992.
(b) United has furnished to NCBE copies of all its audited
financial statements relating to United and its subsidiaries,
as of June 30, 1994 and 1993 and for each of the fiscal years
ended June 30, 1994, 1993, and 1992. United has furnished to
NCBE copies of all financial statements relating to United and
its subsidiaries, as filed with the appropriate regulatory
agencies, as of and for the interim period ended September 30,
1994. Each of the aforementioned financial statements is
prepared in accordance with generally accepted accounting
principles or
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25
applicable regulatory accounting principles applicable to the
United Bank, consistently applied and is true and correct in
all material respects and together present fairly the
consolidated financial position and results of operations of
United as of the dates and for the periods therein set forth
(subject, in the case of such interim financial statements, to
normal year-end adjustments and the absence of footnotes).
Such financial statements do not, as of the dates thereof,
include any material asset or omit any material liability,
absolute or contingent, or other fact, the inclusion or
omission of which renders such financial statements, in light
of the circumstances under which they were made, misleading in
any material respect, except for certain contingent
liabilities which are disclosed in United's letter to NCBE of
even date herewith. Since June 30, 1994, United has not
suffered a Material Adverse Effect.
(c) The Board of Directors of United has authorized execution of
this Merger Agreement. Subject to the approval by the OTS and
the shareholders of United, United has all requisite power and
authority to enter in this Merger Agreement. United owns all
of the shares of United Bank. United has the authority to
consummate the transactions contemplated hereby, provided all
required corporate and regulatory approvals are obtained, so
that neither the execution and delivery of this Merger
Agreement nor the consummation of the Merger will conflict
with, result in the breach of, constitute a default under or
accelerate the performance provided by the terms of any law,
or any rule or regulation of any governmental agency or
authority or any judgment, order or decree of any court or
other governmental agency to which United may be subject, any
contract, agreement or instrument to which United is a party
or by which United is bound or committed, or the Certificate
of Incorporation or Bylaws of United, or constitute an event
which with the lapse of time or action by a third party,
could, to the best of United's knowledge, result in the
default under any of the foregoing
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26
or result in the creation of any lien, charge, encumbrance
upon any of the assets, property or capital stock of United,
except, however, in the case of contracts, agreements or
instruments, such defaults, conflicts or breaches which either
(i) will be cured or waived prior to the time the Merger
becomes effective, or (ii) if not so cured or waived would
not, in the aggregate, have a Material Adverse Effect on
United.
(d) Other than as disclosed on the United Document List there is
no litigation, action, suit, investigation or proceeding
pending or, to the best of its knowledge after due inquiry of
its executive officers, overtly threatened, against or
affecting United or its wholly-owned subsidiaries or involving
any of their respective properties or assets, at law or in
equity, before any federal, state, municipal, local or other
governmental authority, involving a material amount which, if
resolved adversely to the interest of United would materially
affect the consolidated financial condition or operations of
United and its wholly-owned subsidiaries on a consolidated
basis, and/or its ability to perform under this Merger
Agreement, and to the best of its knowledge and belief after
due inquiry its executive officers, no one has asserted and no
one has reasonable or valid ground on which it reasonably can
be expected that anyone will assert any such claims against
United or its wholly-owned subsidiaries based upon the
wrongful action or inaction of United or its subsidiaries or
any of their respective officers, directors or employees.
(e) Each of United and its wholly owned subsidiaries have good and
marketable title to all assets and properties, whether real or
personal, tangible or intangible, including without limitation
the capital stock of its wholly-owned subsidiaries and all
other assets and properties reflected as owned by it or them
in United's Balance Sheet of September 30, 1994, or acquired
subsequent thereto (except to the extent that such assets and
properties have been disposed of for fair value in the
ordinary course of business since September 30, 1994) subject
to no liens, mortgages,
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27
security interests, encumbrances, pledges or charges of any
kind, except: (i) those items that secure liabilities that are
reflected in said Balance Sheet; (ii) statutory liens for
taxes not yet delinquent; and (iii) minor defects and
irregularities in title and encumbrances which do not
materially impair the use thereof for the purposes for which
they are held; and such liens, mortgages, security interests,
encumbrances and charges are not in the aggregate, material to
the assets and properties of United on a consolidated basis.
Each of United and its wholly-owned subsidiaries, as lessee
has the contractual right under valid leases to occupy, use,
possess and control all material property leased by them.
(f) To the best of its knowledge after due inquiry of United and
its executive officers, United and its wholly-owned
subsidiaries have complied with all laws, regulations and
orders applicable to them and to the conduct of their
businesses, including without limitation, all statutes, rules
and regulations pertaining to the conduct of United Bank
banking activities except for possible technical violations
which together with any penalty which results therefrom are or
will be of no material consequence to United and its
wholly-owned subsidiaries. Neither United nor any of its
wholly-owned subsidiaries is the subject of nor a party to,
any regulatory actions or agreement such as letter agreements,
memorandum of understanding, cease and desist order or like
agreements. United and its wholly-owned subsidiaries are not
in default under, and no event has occurred which, with the
lapse of time or action by a third party, could, to the best
of United's knowledge after due inquiry of its executive
officers, result in the default under the terms of any
judgment, decree, order, writ, rule or regulation of any
governmental authority or court, whether federal, state or
local and whether at law or in equity, where the default(s)
could reasonably be expected to have a Material Adverse Effect
on United.
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28
(g) Except as disclosed in United's letter to NCBE of even date
herewith, receipt of which is acknowledged by NCBE, United has
not, since September 30, 1994, to the date hereof: (i) issued
or sold any of its capital stock or any corporate debt
securities; (ii) granted any option for the purchase of
capital stock; (iii) declared or set aside or paid any
dividend or other distribution in respect of its capital stock
except as permitted pursuant to the terms of this agreement
or, directly or indirectly, purchased, redeemed or otherwise
acquired any shares of such stock; (iv) incurred any
obligation or liability (absolute or contingent), except for
obligations reflected in this Merger Agreement and for
obligations or liabilities incurred in the ordinary course of
business; (v) mortgaged, pledged or voluntarily subjected to
lien or encumbrance (other than statutory liens for taxes not
yet delinquent) any of its assets or properties; (vi)
discharged or satisfied any material lien or encumbrance or
paid any material obligation or liability (absolute or
contingent), other than the current portion of any long term
liabilities which became due after September 30, 1994, current
liabilities included in its financial statements as of
September 30, 1994, current liabilities incurred since the
date thereof in the ordinary course of business and
liabilities incurred in carrying out the transactions
contemplated by this Merger Agreement; (vii) sold, exchanged
or otherwise disposed of any of its material capital assets
outside the ordinary course of business; (viii) made any
extraordinary officers' salary increase or wage increase,
entered into any employment contract with any officer or
salaried employee or, instituted any employee welfare, bonus,
stock option, profit-sharing, retirement or similar plan or
arrangement; (ix) suffered any damage, destruction or loss,
whether or not covered by insurance, materially and adversely
affecting its business, property or assets or waived (except
for fair consideration) any rights of value which are material
in the aggregate, considering its business taken as a whole;
or (x) entered or agreed to enter into any agreement or
arrangement
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29
granting any preferential right to purchase any of its assets,
properties or rights or requiring the consent of any party to
the transfer and assignment of any material portion of such
assets, properties or rights.
(h) Except as set forth in the United Document List attached to
United's letter to NCBE of even date herewith, receipt of
which is acknowledged by NCBE, neither United nor any of its
wholly-owned subsidiaries is a party to or bound by any
written or oral: (i) employment or consulting contract which
is not terminable by it on 60 days or less notice, (ii)
employee bonus, deferred compensation, pension, stock bonus or
purchase, profit-sharing, retirement or stock option plan,
(iii) other employee benefit or welfare plan, or (iv) other
executory material agreements which in any case obligate it to
make any payment(s) which in the aggregate exceed $10,000 per
year except for contracts terminable on 60 days notice. All
such pension, stock bonus or purchase, profit-sharing, defined
benefit and retirement plans set forth under the caption
"Qualified Plans" in the United Document List (hereinafter
referred to collectively as the "plan") are qualified plans
under Section 401(a) of the Internal Revenue Code and in
compliance in all material respects with ERISA. All material
notices, reports and other filings required under applicable
law to be given or made to or with any governmental agency
with respect to the plans have been timely filed or delivered
where failure to file would result in a penalty of $25,000
and/or result in disqualification of the plan. United has no
knowledge either of any circumstances which would adversely
affect the qualification of the plans or their compliance with
ERISA, or of any unreported "reportable event" (as such term
is defined in Section 4043(b) of ERISA) or, except as
indicated in the United Document List attached to United's
letter to NCBE of even date herewith, any "prohibited
transaction" (as such term is defined in Section 406 of ERISA
and Section 4975(c) of the Internal Revenue Code) which has
occurred since the date on which said sections became
29
30
applicable to the plans. Each plan that is a defined benefit
pension plan meets the minimum funding standards set forth in
the Internal Revenue Code and ERISA.
(i) United has duly filed all federal, state, county and local
income, excise, real and personal property and other tax
returns and reports (including, but not limited to, social
security, withholding, unemployment insurance, and sales and
use taxes) required to have been filed by United up to the
date hereof (excluding any return or report for which a
current valid extension is in effect). Except as set forth in
United's letter to NCBE of even date herewith, receipt of
which is acknowledged by NCBE, to the best of the knowledge
and belief of United after due inquiry of its executive
officers, all such returns are true and correct in all
material respects, and United has paid or, prior to the time
the Merger shall become effective, will pay all taxes,
interest and penalties shown on such return or reports or
claimed (other than those claims being contested in good faith
and which have been disclosed to NCBE) to be due to any
federal, state, county, local or other taxing authority, and
there is, and at the time the Merger shall become effective
will be, no basis known to the executive officers of United
for any additional claim or assessment which might result in a
Material Adverse Effect on United and for which an adequate
reserve has not been established. To the best of its
knowledge and belief after due inquiry of its executive
officers, United has paid or made adequate provision in its
financial statements or its books and records for all taxes
payable in respect of all periods ending as of the date
thereof. To the best of its knowledge and belief after due
inquiry of its executive officers, United has, or at the time
the Merger shall become effective will have, no material
liability for any taxes, interest or penalties of any nature
whatsoever, except for those taxes which may have arisen up to
the time the Merger shall become effective in the ordinary
course of business and are properly accrued on the books of
United as of the time the Merger shall become effective.
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31
(j) To the best of its knowledge and belief, but without having
undertaken an environmental audit or investigation, United has
no knowledge of any underground storage tanks, any hazardous
substances, hazardous waste, pollutant or contaminant,
including, but not limited to, asbestos (except as previously
disclosed to NCBE in a letter of even date herewith), PCB's or
urea formaldehyde, having been generated, released into,
stored or deposited over, upon or below (in storage tanks or
otherwise) any real property currently or to be owned or
leased by United or any of its wholly-owned subsidiaries, or
into any water systems on or below the surface any real
property currently or to be owned or leased by United or any
of its wholly-owned subsidiaries from any source whatsoever.
(k) United or United Bank has in effect insurance coverage with
reputable insurance underwriters, which in respect of amounts,
premiums, types and risks in insured, constitutes reasonably
adequate coverage against all risks customarily insured
against companies comparable in size and operation to United
or United Bank.
(l) Except as set forth in the United Document List, United has
not incurred and will not incur any liability for brokerage,
finders', agents', or investment bankers' fees or commissions
in connection with this Merger Agreement or the transactions
contemplated hereby.
15. Action by United Pending Effective Time. United agrees that from the
date of this Merger Agreement until the time the Merger shall become
effective or this Merger Agreement is properly terminated, except with
prior written permission of NCBE:
(a) United will not declare or pay any dividends or make any
distributions other than regular cash dividends, payable at
such times and in amounts consistent with past practice and
not to exceed the per share rate paid in the prior calendar
year, provided, however, that shareholders of United may for
any given quarter, receive a dividend attributable to that
quarter only from NCBE or United, but not from both. NCBE and
United agree to cooperate to coordinate the record and payment
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32
dates of their cash dividend for the quarter in which the
Merger becomes effective so that the United shareholders
receive a quarterly dividend from either United or NCBE but
not from both with respect to such quarter. If, prior to the
consummation of the Merger, United shall declare a stock
dividend or make distributions upon or subdivide, split up,
reclassify or combine its shares of common stock in any
security convertible into its common stock, appropriate
adjustment or adjustments will be made in the foregoing per
share dividend rate.
(b) United will not issue, sell, grant any option for, or acquire
for value any shares of its capital stock or otherwise effect
any change in connection with its capitalization except in
connection with the exercise of stock options which are
outstanding on the date hereof.
(c) Except as otherwise set forth in or contemplated by this
Merger Agreement, United will use its best efforts to (i)
carry on its businesses in substantially the same manner as
heretofore conducted; (ii) keep in full force and effect
insurance comparable in amount and scope of coverage to that
now maintained by it; and (iii) maintain and preserve its
business organization intact.
(d) United will not: (i) enter into any transaction other than in
the ordinary course of business or voluntarily incur or agree
to incur any material obligation or liability except
liabilities incurred and obligations entered into in the
ordinary course of business; (ii) change its or United Bank's
lending, investment, liability management and other material
United Bank banking policies in any material respect except in
accordance with prudent banking practices after consultation
with NCBE; (iii) except for customary periodic increases
consistent with prior practice, grant any individual, general
or uniform increase in the rates of pay of employees or make
any significant increase in its staff size; (iv) incur or
commit to any capital expenditures other than (x) in the
ordinary course of business (which in no event shall include
the establishment of new branches and such other
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33
facilities or any capital expenditures for any purpose which
exceed 1% of United's combined capital, surplus and undivided
profit accounts as of June 30, 1994) or (y) in connection with
emergency repairs or replacements; or (v) permit any other
corporation to be merged or consolidated with and into it or
acquire all of the assets of any other corporation or person.
(e) United will not change its methods of accounting in effect at
June 30, 1994, except as required by changes in generally
accepted or regulatory accounting principles and concurred in
by United's independent auditors, or change any of its methods
of reporting income and deductions for Federal income tax
purposes from those employed in the preparation of United's
Federal income tax returns for the taxable year ending June
30, 1994, except for changes required by law.
(f) United will afford NCBE, its officers and other authorized
representatives, reasonable access to all books, records, tax
returns, leases, contracts and documents of United and its
wholly-owned subsidiaries and will furnish to NCBE such
information with respect to the assets and business of United
and its wholly-owned subsidiaries as NCBE may from time to
time reasonably request in connection with this Merger
Agreement and the transactions contemplated hereby.
(g) United will promptly advise NCBE in writing of all material
actions taken by the directors and shareholders of United,
furnish NCBE with copies of all interim financial statements
of United as they become available, and keep NCBE fully
informed concerning all developments which in the opinion of
United may have a material effect upon the business,
properties or condition (either financial or otherwise) of
United.
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34
16. Action by NCBE Pending Effective Time. NCBE agrees that from the date
of this Agreement until the time the Merger shall become effective or
this Merger Agreement is properly terminated:
(a) NCBE will carry on its business in substantially the same
manner as heretofore conducted except as otherwise set forth
in or contemplated by this Merger Agreement, and NCBE will
keep in full force and effect insurance comparable in amount
and scope of coverage to that now maintained by it and use its
best efforts to maintain and preserve its business
organization intact. United acknowledges that, in the
ordinary course of its business as a bank holding company,
NCBE from time-to-time, enters into an agreement(s) to acquire
by merger, stock purchase or like means, another financial
institution or its holding company.
(b) NCBE will not change its methods of accounting in effect at
December 31, 1993, except as required by changes in generally
accepted or regulatory accounting principles as concurred in
by NCBE's independent auditors, or change any of its methods
of reporting income and deductions for Federal income tax
purposes from those employed in the preparation of the Federal
income tax returns of NCBE Banks for the taxable year ending
December 31, 1993, except for changes required by law or take
any action which could jeopardize the tax free nature of the
Merger or the pooling of interests accounting treatment for
the Merger.
(c) NCBE will promptly advise United in writing of all material
corporate actions taken by the directors of NCBE, furnish
United with copies of interim financial statements of NCBE and
all reports, schedules and statements filed by or delivered to
NCBE pursuant to the 1934 Act and the rules and regulations
promulgated thereunder, as they become available, and keep
United fully informed concerning all developments which in the
opinion of NCBE may have a
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material effect upon the business, properties or condition
(either financial or otherwise) of NCBE.
(d) NCBE will afford United, its officers and other authorized
representatives, reasonable access to all books, records, tax
returns, leases, contracts and documents of NCBE and its
wholly-owned subsidiaries and will furnish to United such
information with respect to the assets and business of NCBE
and its wholly-owned subsidiaries as United may from time to
time reasonably request in connection with this Merger
Agreement and the transactions contemplated hereby.
(e) NCBE shall knowingly take no action, nor knowingly fail to
take any action which reasonably may be taken by it, to
prevent or disqualify the Merger from being accounted for as a
pooling of interests.
17. Notification of Certain Matters.
(a) Each party shall give prompt notice to the other party of (i)
the occurrence or failure to occur of any event or the
discovery of any information, which occurrence, failure or
discovery would be likely to cause any representation or
warranty on its part contained in this Merger Agreement to be
untrue, inaccurate or incomplete in any material respect after
the date hereof or, in case of any representation or warranty
given as of a specific date, would be likely to cause any such
representation on its part contained in this Merger Agreement
to be untrue, inaccurate or incomplete in any material respect
as of such specific date and (ii) any material failure of such
party to comply with or satisfy any covenant or agreement to
be complied with or satisfied by it hereunder.
(b) From time to time prior to the time the Merger shall become
effective, each party shall promptly supplement or amend any
of its representations and warranties which apply to the
period after the date hereof by delivering a letter to the
other party with respect to any matter hereafter arising which
would render any such representation or warranty after the
date of this Merger Agreement materially
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inaccurate or incomplete as a result of such matter arising.
Such supplement or amendment to a party's representations and
warranties contained in any such letter shall be deemed to
have modified the representations and warranties of the
disclosing party, and no such supplement or amendment, or the
information contained in any such letter, shall constitute a
breach of a representation or warranty of the disclosing
party; provided that no such supplement or amendment may cure
any breach of a covenant or agreement of a party. Within 20
days after receipt of such supplement or amendment (or if cure
is promptly commenced by the disclosing party, but is not
effected within the Cure Period (as defined below)), the
receiving party may exercise its right to terminate this
Agreement pursuant to Section 27(e) hereof if the information
in such supplement or amendment together with the information
in any or all of the supplements or amendments previously
provided by the disclosing party indicate that the disclosing
party has suffered or is reasonably likely to suffer a
Material Adverse Effect which either has not or cannot be
cured within 30 days after disclosure to the receiving party
(the "Cure Period").
18. Affiliate Letters. United shall obtain and deliver to NCBE as
promptly as practicable after (and shall use its reasonable best
efforts to obtain and deliver within five days after) the date hereof
a signed representation letter substantially in the form of Exhibit A
hereto from each executive officer and director of United and each
shareholder of United who may reasonably be deemed an "affiliate" of
United within the meaning of such term as used in Rule 145 under the
1933 Act and for purposes of qualifying for pooling of interests
accounting treatment for the Merger, and shall obtain and deliver to
NCBE a signed representation letter substantially in the form of
Exhibit A from any person who becomes an executive officer or director
of United or any shareholder who becomes such an "affiliate" after the
date hereof as promptly as practicable after (and shall use its
reasonable best efforts to obtain and deliver within five days after)
such person achieves
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such status. NCBE shall likewise use its best efforts to secure
letters or commitments from its affiliates to satisfy
pooling-of-interest accounting requirements.
19. Indemnification
(a) From and after the time the Merger becomes effective, NCBE
shall indemnify, defend and hold harmless each person who is
now, or has been at any time prior to the date hereof or who
becomes prior to the time the Merger becomes effective, an
officer, director, employee or agent of Untied or any of its
wholly-owned subsidiaries (the "Indemnified Parties") against
all losses, claims, damages, costs, expenses (including
attorney's fees), liabilities or judgments or amounts that are
paid in settlement (which settlement shall require the prior
written consent of NCBE, which consent shall not be
unreasonably withheld) of or in connection with any claim,
action, suit, proceeding or investigation (a "Claim") in which
an Indemnified Party is, or is threatened to be made, a party
or a witness based in whole or in part on or arising in whole
or in part out of the fact that such person is or was a
director, officer, employee or agent of United or any of its
wholly-owned subsidiaries if such Claim pertains to any matter
or fact arising, existing or occurring on or prior to the time
the Merger shall become effective (including, without
limitation, the Merger and other transactions contemplated by
this Merger Agreement), regardless of whether such Claim is
asserted or claimed prior to, at or after the time the Merger
shall become effective (the "Indemnified Liabilities") to the
fullest extent permitted by NCBE's Articles of Incorporation
and Bylaws or applicable law whichever shall be greater. Any
Indemnified Party wishing to claim indemnification under this
Section 19(a), upon learning of any Claim, shall notify NCBE
(but the failure so to notify NCBE shall not relieve it from
any liability which NCBE may have under this Section 19(a)
except to the extent such failure prejudices NCBE) and shall
be entitled to receive advances of costs and expenses from
NCBE upon delivery to NCBE of any undertaking required by
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applicable law relating to the obligation of the Indemnified
Party to reimburse NCBE for such advances in certain
circumstances. The obligations of NCBE described in this
Section 19(a) shall continue in full force and effect, without
any amendment thereto, for a period of not less than six years
from the time the Merger shall become effective; provided,
however, that all rights to indemnification in respect of any
Claim asserted or made within such period shall continue until
the final disposition of such Claim; and provided further that
nothing in this Section 19(a) shall be deemed to modify
applicable law regarding indemnification of former officers
and directors.
(b) From and after the time the Merger shall become effective, the
directors, officers and employees of United or any of its
wholly-owned subsidiaries who become directors, officers or
employees of NCBE or any NCBE wholly-owned subsidiary
including United Bank, shall also have indemnification rights
with prospective application. The prospective indemnification
rights shall consist of such rights to which directors,
officers and employees of NCBE are entitled under the
provisions of the Articles of Incorporation, Bylaws or similar
governing documents of NCBE and the NCBE wholly-owned
subsidiaries, as in effect from time to time after the time
the Merger becomes effective, as applicable, and provisions of
applicable law as in effect from time to time after the time
the Merger shall become effective.
(c) If requested by United at any time prior to the effective time
of the Merger, from and after the effective time of the
Merger, NCBE shall use its best efforts to cause United Bank
and any successor thereto to maintain directors and officers
liability insurance comparable to that being maintained by
United Bank on the date hereof, or continue the existing
insurance being maintained by United Bank, for the benefit of
the current and former directors and officers of United Bank
for a period of at least three years after the time the Merger
becomes effective, which
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insurance shall provide coverage for acts and omission
occurring on or prior to the time the Merger shall become
effective; provided, further, that officers and directors of
United Bank may be required to make application and provide
customary representations and warranties to NCBE's or United
Bank's insurance carrier for the purpose of obtaining such
insurance.
(d) The contractual obligations of NCBE provided under Sections
19(a), 19(b) and 19(c) hereof are intended to benefit, and be
enforceable against NCBE directly by, the Indemnified Parties,
and shall be binding on all successors of NCBE.
20. Conditions to Obligations of NCBE. The obligations of NCBE under this
Merger Agreement are subject, unless waived by NCBE, to the
satisfaction of the following conditions on or prior to the time the
Merger shall become effective:
(a) There shall not have been occurred an event or series of
events which has resulted or is likely to result in a Material
Adverse Effect on United from September 30, 1994, to the time
the Merger shall become effective.
(b) United shall not have paid cash dividends from the date hereof
to the time the Merger shall become effective except as
permitted under section 15(a) this Merger Agreement.
(c) All representations by United contained in this Merger
Agreement shall be true in all material respects at, or as of,
the time the Merger shall become effective as though such
representations were made at and as of said date, except for
changes contemplated by the Merger Agreement and except also
for representations as of a specified time other than the time
the Merger shall become effective, which shall be true in all
material respects at such specified time.
(d) NCBE shall have received the opinion of legal counsel for
United, dated the time the Merger shall become effective,
substantially to the effect set forth in Exhibit B hereto.
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(e) United shall have performed or satisfied in all material
respects all agreements, covenants and conditions required by
this Merger Agreement to be performed or satisfied by it at or
prior to the time the Merger shall become effective.
(f) At the time the Merger shall become effective, no suit, action
or proceeding shall be pending or overtly threatened before
any court or other governmental agency by the federal or state
government in which it is sought to restrain or prohibit the
consummation of the Merger, and no other suit, action or
proceeding shall be pending or overtly threatened and no
liability or claim shall have been asserted against United or
United Bank which NCBE shall in good faith determine, with
advice of counsel: (i) has a reasonable likelihood of being
successfully prosecuted and (ii) if successfully prosecuted,
would result in a Material Adverse Effect on United.
(g) Holders of United Common Stock who are entitled to exercise in
the aggregate not more than 5% of the voting power of the
issued and outstanding United Common Stock as of the time the
Merger shall become effective shall have taken steps to
perfect their rights as dissenting shareholders pursuant to
the provisions of Section 262 of the Delaware General Business
Corporation Law so that if, at the time the Merger shall
become effective, holders of more than 5% of such shares shall
have taken such steps, NCBE may, at its option, refuse to
consummate the Merger.
(h) United shall have furnished NCBE certificates, signed on its
behalf by the Chairman or President and the Secretary or an
Assistant Secretary of United and dated the time the Merger
shall become effective, to the effect that to the best of
their knowledge, after due inquiry, the conditions described
in Paragraphs (b), (c), and (f) of this Section 20 have been
fully satisfied.
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(i) No event shall have occurred which, in the reasonable opinion
of NCBE and concurred in by McGladrey & Xxxxxx, would prevent
the Merger from being accounted for as a pooling of interests.
(j) The employment contracts between United Bank and Xxxxxx X.
Xxxxxxx, G. Xxxxxxx Xxxxxx and Xxxxxxx X. Xxxxxxx shall have
expired or have been terminated, without liability to United
or United Bank, at or prior to the effective time of the
Merger.
21. Conditions to Obligations of United. The obligations of United under
this Merger Agreement are subject, unless waived by United, to the
satisfaction on or prior to the time the Merger shall become effective
of the following conditions:
(a) There shall not have occurred an event or series of events
which has or is likely to result in a Material Adverse Effect
on NCBE from September 30, 1994, to the time the Merger shall
become effective.
(b) All representations by NCBE contained in this Merger Agreement
shall be true in all material respects at, or as of, the time
the Merger shall become effective as though such
representations were made at and as of said date, except for
changes contemplated by this Merger Agreement, and except also
for representations as of a specified time other than the time
the Merger shall become effective, which shall be true in all
material respects at such specified time.
(c) United shall have received the opinions of Counsel for NCBE
dated the time the Merger shall become effective substantially
to the effect set forth in Exhibit C hereto and in section 12
hereto.
(d) NCBE shall have performed or satisfied in all material
respects all agreements and covenants required by this Merger
Agreement to be performed or satisfied by it at or prior to
the time the Merger shall become effective.
(e) At the time the Merger shall become effective, no suit, action
or proceeding shall be pending or overtly threatened before
any court or other governmental agency
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of the federal or state government in which it is sought to
restrain, prohibit or set aside consummation of the Merger and
no other suit, action or proceeding shall be pending or
overtly threatened and no liability or claim shall have been
asserted against NCBE which United shall in good faith
determine, with advice of counsel: (i) has a reasonable
likelihood of being successfully prosecuted; and (ii) if
successfully prosecuted, would result in a Material Adverse
Effect on NCBE.
(f) NCBE shall have furnished United a certificate, signed by the
Chairman or President and by the Secretary or Assistant
Secretary of NCBE and dated the time the Merger shall become
effective to the effect that to the best of their knowledge
after due inquiry the conditions described in Paragraphs (a),
(b), and (e) of this Section 21 have been fully satisfied.
(g) United shall have received a written opinion of Xxxxxxx Xxxx
and Co., dated within two days of the date of the
Prosptecuts/Proxy Statement, reasonably satisfactory in
substance to the United Board of Directors, to the effect that
the Merger is fair to the holders of United common stock from
a financial point of view, and such opinion shall not have
been withdrawn prior to the conclusion of the United
shareholders' meeting.
(h) No event shall have occurred which would prevent the Merger
from being accounted for as a pooling of interests.
22. Conditions to Obligations of All Parties. In addition to the
provisions of Sections 20 and 21 hereof, the obligations of NCBE and
United to cause the transactions contemplated herein to be consummated
shall be subject to the satisfaction of the following conditions on or
prior to the time the Merger shall become effective:
(a) The parties hereto shall have received all necessary approvals
of governmental agencies and authorities of the transactions
contemplated by this Merger Agreement and each of such
approvals shall remain in full force and effect at the time
the Merger shall become effective and such approvals and the
transactions
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contemplated thereby shall not have been contested by any
federal or state governmental authority by formal proceeding,
or contested by any other third party by formal proceeding
which the Board of Directors of the party asserting a failure
of a condition under this Section 22(a) shall in good faith
determine, with the advice of counsel: (i) has a reasonable
likelihood of being successfully prosecuted and (ii) if
successfully prosecuted, would materially and adversely affect
the benefits hereunder intended for such party. It is
understood that, if any such contest is brought by formal
proceedings, NCBE may, but shall not be obligated to, answer
and defend such contest. NCBE shall notify United promptly
upon receipt of all necessary governmental approvals.
(b) The Registration Statement shall have become effective by an
order of the SEC, the shares of NCBE Common Stock to be
exchanged in the Merger shall have been qualified or exempted
under all applicable state securities laws, and there shall
have been no stop order issued or threatened by the SEC that
suspends or would suspend the effectiveness of the
registration statement, and no proceeding shall have been
commenced, pending or overtly threatened for such purpose.
(c) This Merger Agreement shall have been duly adopted, ratified
and confirmed by the requisite affirmative votes of the
shareholders of United and, if required, NCBE.
(d) NCBE and United shall have received the opinion called for
pursuant to Section 12 of this Merger Agreement and there
shall exist as of, at or immediately prior to the time the
Merger shall become effective no facts or circumstances which
would render such opinion inapplicable in any respect to the
transactions to be consummated hereunder.
23. Nonsurvival of Representations and Warranties. The respective
representations and warranties of NCBE and United set forth shall not
survive the time the Merger shall
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become effective, provided, however, that all agreements or covenants
of a party contemplated to be performed after the time the Merger
becomes effective shall survive.
24. Governing Law. This Merger Agreement shall be construed and
interpreted according to the applicable laws of the State of Indiana,
except to the extent that federal or Delaware law controls.
25. Assignment. This Merger Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns, but neither
this Merger Agreement nor any of the rights, interest, or obligations
hereunder shall be assigned by either of the parties hereto without
the prior written consent of the other party; provided, however, that
NCBE shall not engage in a transaction pursuant to which its
shareholders exchange NCBE common stock for securities or property of
another party whether by statutory share exchange, merger,
consolidation, reorganization or the sale of substantially all the
assets of NCBE without concurrently therewith assigning to the
acquiring or surviving party, all of the obligations of NCBE under
this Agreement.
26. Satisfaction of Conditions.
NCBE agrees to use its best effort to obtain satisfaction of the
conditions insofar as they relate to NCBE, and United agrees to use
its best efforts to obtain the satisfaction of the conditions insofar
as they relate to United.
27. Termination. This Merger Agreement may be terminated prior to the
time the Merger becomes effective as follows:
(a) by mutual consent of NCBE and United, if the Board of
Directors of each so determines by vote of a majority of the
members of its entire Board;
(b) by either NCBE or United, if any of the conditions to such
party's obligation to consummate the transactions contemplated
in this Merger Agreement shall have become impossible to
satisfy;
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(c) by either NCBE or United, if this Merger Agreement is not duly
approved by the requisite vote of shareholders of United and
NCBE, if required, in each case a meeting of shareholders (or
any adjournment thereof duly called and held for such
purpose);
(d) by either NCBE or United, if the Merger does not become
effective on or before September 30, 1995 (unless the failure
to consummate the Merger by such date shall be due to the
action or failure to act of the party seeking to terminate
this Merger Agreement);
(e) by NCBE or United as provided in Section 17(b) hereof;
(f) by United if the Average Price is less than $38.00 as
recalculated for each Stock Adjustment;
(g) by United if its Board of Directors shall determine, after
consultation with United's independent financial advisor and
outside counsel, that the failure to terminate this Merger
Agreement could reasonably be found to constitute a breach of
its fiduciary duties; or
(h) by either NCBE or United, if the other party hereto commits a
willful breach which is not cured within 10 days after receipt
by the breaching party of written demand for cure by the
nonbreaching party. For purposes of this Merger Agreement, a
"willful breach" means a knowing and intentional violation by
a party of any of its covenants, representations, warranties,
agreements or obligations under this Merger Agreement.
Any party desiring to terminate this Merger Agreement shall give
written notice of such termination and the reasons therefor to the
other party.
28. Effect of Termination.
(a) In the event this Merger Agreement is properly terminated
pursuant to Section 27(a)-(f), then neither party shall have
any liability to the other party.
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(b) In the event this Merger Agreement is properly terminated
pursuant to Section 27(g), then within ten (10) days after
written demand by NCBE, United shall pay to NCBE in
immediately available funds, a termination fee of $500,000.
(c) In the event this Merger Agreement is properly terminated by
either party pursuant to Section 27(h), then within ten (10)
days after written demand by the terminating party, the party
that has willfully breached this Merger Agreement shall pay to
the terminating party, in immediately available funds,
$1,000,000 as agreed upon liquidated damages.
(d) The confidentiality provisions of Section 10(d) hereof shall
survive any termination of this Merger Agreement.
29. Waivers Amendments. Any of the provisions of this Merger Agreement
may be waived at any time by the party which is, or the shareholders
of which are, entitled to the benefit thereof, by resolution of the
Board of Directors of such party. This Merger Agreement may be
amended or modified in whole or in part by an agreement in writing
executed in the same manner (but not necessarily by the same person)
as this Merger Agreement and which makes reference to this Merger
Agreement, pursuant to a resolution, adopted by the Boards of
Directors of the respective parties, provided, however, such amendment
or modification may be made in this manner by the respective Boards of
Directors of NCBE and United at anytime prior to a favorable vote of
such party's shareholders, but may be made after a favorable vote by
the shareholders of such party, only if, in the opinion of its Board
of Directors, such amendment or modification will not have any
material adverse effect on the benefits intended under this Merger
Agreement for the shareholders of such party and will not require
resolicitation of any proxies from such shareholders.
30. Entire Agreement. This Agreement supersedes any other agreement,
whether written or oral, that may have been made or entered into by
NCBE and United or by any officer or officers of such parties relating
to the acquisition of the business or the capital stock of United by
NCBE. Except for the letters specified in this Merger Agreement and
of even
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date herewith, this Agreement constitutes the entire agreement by the
parties, and there are no agreements or commitments except as set
forth herein and therein.
31. Captions; Counterparts. The captions in this Merger Agreement are for
convenience only and shall not be considered a part of or affect the
construction or interpretation of any provision of this Merger
Agreement. This Merger Agreement may be executed in several
counterparts, each of which shall constitute one and the same
instrument.
32. Notices. All notices and other communications hereunder shall be
deemed to have been duly given if forwarded by a nationally recognized
overnight courier service. All notices and other communications
hereunder given to any party shall be communicated to the remaining
party to this Merger Agreement by mail in the same manner as herein
provided.
a) If to NCBE, to:
Xx. Xxxxxx X. Xxxx
President
National City Bancshares, Inc.
000 Xxxx Xxxxxx, X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxx 00000-0000
With copies to:
Xxxxxx X. Xxxxxx, Esq.
Xxxxxx & Blank Co., L.P.A.
0000 X. Xxxxxxx Xxxxxx
Xxxxxx, Xxxx 00000
(b) If to United, to:
Xx. Xxxxxx X. Xxxxxxx
President
United Financial Bancorp, Inc.
000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
With copies to:
Xxxxxxx X. Xxxxxxx, Esq.
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Silver Xxxxxxxx & Taff
0000 Xxx Xxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
33. Publicity. NCBE and United agree to consult with and obtain the
consent of the other, prior to any media release or other public
disclosures as to the matters covered by this Merger Agreement, except
as may be required by law.
IN WITNESS WHEREOF, this Merger Agreement has been executed the day and
year first above written.
ATTEST: National City Bancshares, Inc.
__________________________________ By: /s/ XXXX X. XXXXXXX
By: /s/ XXXXXX X. XXXX Xxxx X. Xxxxxxx, Chairman,
Its: President and Chief Executive Officer
ATTEST: United Financial Bancorp, Inc..
__________________________________ By: /s/ XXXXXX X. XXXXXXX
By: /s/ XXXXXX X. XXXXXXXXX Xxxxxx X. Xxxxxxx, President and
Its: Chairman of the Board Chief Executive Officer
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