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EXHIBIT 2.1
EXECUTION COPY
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AGREEMENT AND PLAN OF MERGER
dated as of September 10, 1997
by and between
UNITED BANKSHARES, INC.
and
XXXXXX XXXXX BANKSHARES, INC.
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TABLE OF CONTENTS
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RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
CERTAIN DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.01 Certain Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
The Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.01 The Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.02 Articles Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.03 Effective Date and Effective Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.04 Plan of Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE III
Consideration; Exchange Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.01 Merger Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.02 Rights as Stockholders; Stock Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.03 Fractional Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.04 Exchange Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.05 Anti-Dilution Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.06 Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IV
Actions Pending Acquisition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.01 Forebearances of Xxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.02 Forebearances of United. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE V
Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.01 Disclosure Schedules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.02 Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.03 Representations and Warranties of Xxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.04 Representations and Warranties of United . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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ARTICLE VI
Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
6.01 Reasonable Best Efforts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
6.02 Stockholder Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
6.03 Registration Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
6.04 Press Releases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6.05 Access; Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6.06 Acquisition Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.07. Affiliate Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.08 Takeover Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
6.09 Certain Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
6.10 NASDAQ Listing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
6.11 Regulatory Applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
6.12 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
6.13 Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.14 Notification of Certain Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.15 Directors and Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.16 Dividend Coordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.17 Bank Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.18 Xxxxx Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE VII
Conditions to Consummation of the Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
7.01 Conditions to Each Party's Obligation to Effect the Merger . . . . . . . . . . . . . . . . . . . . . . . . . 35
7.02 Conditions to Obligation of Xxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.03 Conditions to Obligation of United . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE VIII
Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
8.01 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
8.02 Effect of Termination and Abandonment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE IX
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
9.01 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
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9.02 Waiver; Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
9.03 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
9.04 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
9.05 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
9.06 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
9.07 Entire Understanding; No Third Party Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
9.08 Interpretation; Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
EXHIBIT A Form of Stock Option Agreement
EXHIBIT B Form of Xxxxx Affiliate Agreement
EXHIBIT C Form of United Affiliate Agreement
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AGREEMENT AND PLAN OF MERGER, dated as of September 10, 1997 (this
"Agreement"), by and between Xxxxxx Xxxxx Bankshares, Inc. ("Xxxxx") and
United Bankshares, Inc. ("United").
RECITALS
X. Xxxxx. Xxxxx is a Virginia corporation, having its principal
place of business in Fairfax, Virginia.
B. United. United is a West Virginia corporation, having its
principal place of business in Charleston, West Virginia.
C. Stock Option Agreement. As an inducement to the willingness
of United to continue to pursue the transactions contemplated by this Agreement
, Xxxxx expects (but is not obligated) to grant to United an option pursuant to
a stock option agreement, in substantially the form of Exhibit A.
D. Intentions of the Parties. It is the intention of the parties
to this Agreement that the business combination contemplated hereby be
accounted for under the "pooling-of-interests" accounting method and treated as
a "reorganization" under Section 368 of the Internal Revenue Code of 1986 (the
"Code").
E. Board Action. The respective Boards of Directors of each of
United and Xxxxx have determined that it is in the best interests of their
respective companies and their stockholders to consummate the strategic
business combination transaction provided for herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, representations, warranties and agreements contained herein the
parties agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
1.01 Certain Definitions. The following terms are used in this
Agreement with the meanings set forth below:
"Acquisition Proposal" means any tender or exchange offer, proposal
for a merger, consolidation or other business combination involving Xxxxx
or any of its Subsidiaries or any proposal or offer to acquire in any
manner a substantial equity interest in, or a substantial portion of the
assets or deposits of, Xxxxx or any of its Subsidiaries, other than the
transactions contemplated by this Agreement.
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"Agreement" means this Agreement, as amended or modified from time to
time in accordance with Section 9.02.
"Code" means the Internal Revenue Code of 1986, as amended.
"Compensation and Benefit Plans" has the meaning set forth in Section
5.03(m).
"Corporation Commission" has the meaning set forth in Section 2.01(b).
"Costs" has the meaning set forth in Section 6.12(a).
"Disclosure Schedule" has the meaning set forth in Section 5.01.
"Effective Date" means the date on which the Effective Time occurs.
"Effective Time" means the effective time of the Merger, as provided
for in Section 2.03.
"Environmental Laws" means all applicable local, state and federal
environmental, health and safety laws and regulations, including, without
limitation, the Resource Conservation and Recovery Act, the Comprehensive
Environmental Response, Compensation, and Liability Act, the Clean Water
Act, the Federal Clean Air Act, and the Occupational Safety and Health Act,
each as amended, regulations promulgated thereunder, and state
counterparts.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Affiliate" has the meaning set forth in Section 5.03(m).
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder.
"Exchange Agent" has the meaning set forth in Section 3.04.
"Exchange Ratio" has the meaning set forth in Section 3.01.
"Governmental Authority" means any court, administrative agency or
commission or other federal, state or local governmental authority or
instrumentality.
"Indemnified Party" has the meaning set forth in Section 6.12(a).
"Insurance Amount" has the meaning set forth in Section 6.12(b).
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"Insurance Policy" has the meaning set forth in Section 5.03(t).
"Lien" means any charge, mortgage, pledge, security interest,
restriction, claim, lien, or encumbrance.
"Xxxxx" has the meaning set forth in the preamble to this Agreement.
"Xxxxx Affiliate" has the meaning set forth in Section 6.07(a).
"Xxxxx Board" means the Board of Directors of Xxxxx.
"Xxxxx By-Laws" means the By-laws of Xxxxx.
"Xxxxx Certificate" means the Amended Articles of Incorporation of
Xxxxx.
"Xxxxx Common Stock" means the common stock, par value $1.11 per
share, of Xxxxx.
"Xxxxx Meeting" has the meaning set forth in Section 6.02.
"Xxxxx Preferred Stock" means the preferred stock, par value $0.01 per
share, of Xxxxx.
"Xxxxx Stock" means, collectively, Xxxxx Common Stock and Xxxxx
Preferred Stock.
"Xxxxx Stock Plans" has the meaning set forth in Section 3.06..
"Material Adverse Effect" means, with respect to United or Xxxxx, any
effect that (i) is material and adverse to the financial position, results
of operations or business of United and its Subsidiaries taken as a whole
or Xxxxx and its Subsidiaries taken as a whole, respectively, or (ii) would
materially impair the ability of either United or Xxxxx to perform its
obligations under this Agreement or otherwise materially threaten or
materially impede the consummation of the Merger and the other transactions
contemplated by this Agreement; provided, however, that Material Adverse
Effect shall not be deemed to include the impact of (a) changes in banking
and similar laws of general applicability or interpretations thereof by
courts or governmental authorities, (b) changes in generally accepted
accounting principles or regulatory accounting requirements applicable to
banks and their holding companies generally and (c) any modifications or
changes to valuation policies and practices in connection with the Merger
or restructuring charges taken in connection with the Merger, in each case
in accordance with generally accepted accounting principles.
"Merger" has the meaning set forth in Section 2.01.
"Merger Consideration" has the meaning set forth in Section 3.01.
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"Multiemployer Plan" has the meaning set forth in Section 5.03(m).
"NASDAQ" means The Nasdaq Stock Market, Inc.'s National Market System.
"New Certificate" has the meaning set forth in Section 3.04.
"Old Certificate" has the meaning set forth in Section 3.04.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Person" means any individual, bank, corporation, partnership,
association, joint-stock company, business trust or unincorporated
organization.
"Pension Plan" has the meaning set forth in Section 5.03(m).
"Plans" has the meaning set forth in Section 5.03(m).
"Previously Disclosed" by a party shall mean information set forth in
its Disclosure Schedule.
"Proxy Statement" has the meaning set forth in Section 6.03.
"Registration Statement" has the meaning set forth in Section 6.03.
"Regulatory Authority" has the meaning set forth in Section 5.03(i).
"Representatives" means, with respect to any Person, such Person's
directors, officers, employees, legal or financial advisors or any
representatives of such legal or financial advisors.
"Rights" means, with respect to any Person, securities or obligations
convertible into or exercisable or exchangeable for, or giving any person
any right to subscribe for or acquire, or any options, calls or commitments
relating to, or any stock appreciation right or other instrument the value
of which is determined in whole or in part by reference to the market price
or value of, shares of capital stock of such person.
"SEC" means the Securities and Exchange Commission.
"SEC Documents" has the meaning set forth in Section 5.03(g).
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations thereunder.
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"Stock Option Agreement" has the meaning set forth in Recital C.
"Subsidiary" and "Significant Subsidiary" have the meanings ascribed
to them in Rule 1-02 of Regulation S-X of the SEC.
"Surviving Corporation" has the meaning set forth in Section 2.01.
"Takeover Laws" has the meaning set forth in Section 5.03 (o).
"Tax" and "Taxes" means all federal, state, local or foreign taxes,
charges, fees, levies or other assessments, however denominated, including,
without limitation, all net income, gross income, gains, gross receipts,
sales, use, ad valorem, goods and services, capital, production, transfer,
franchise, windfall profits, license, withholding, payroll, employment,
disability, employer health, excise, estimated, severance, stamp,
occupation, property, environmental, unemployment or other taxes, custom
duties, fees, assessments or charges of any kind whatsoever, together with
any interest and any penalties, additions to tax or additional amounts
imposed by any taxing authority whether arising before, on or after the
Effective Date.
"Tax Returns" means any return, amended return or other report
(including elections, declarations, disclosures, schedules, estimates and
information returns) required to be filed with respect to any Tax.
"Treasury Stock" shall mean shares of Xxxxx Stock held by Xxxxx or any
of its Subsidiaries or by United or any of its Subsidiaries, in each case
other than in a fiduciary capacity or as a result of debts previously
contracted in good faith.
"United" has the meaning set forth in the preamble to this Agreement.
"United Board" means the Board of Directors of United.
"United Common Stock" means the common stock, par value $2.50 per
share, of United.
"United Meeting" has the meaning set forth in Section 6.02.
"VSCA" means the Virginia Stock Corporation Act.
"West Virginia Secretary" has the meaning set forth in Section
2.01(b).
"WVCA" means the West Virginia Corporation Act.
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ARTICLE II
THE MERGER
2.01 The Merger. (a) At the Effective Time, Xxxxx shall merge
with and into United (the "Merger"), the separate corporate existence of Xxxxx
shall cease and United shall survive and continue to exist as a West Virginia
corporation (United, as the surviving corporation in the Merger, sometimes
being referred to herein as the "Surviving Corporation"). United may at any
time prior to the Effective Time change the method of effecting the combination
with Xxxxx (including, without limitation, the provisions of this Article II)
if and to the extent it deems such change to be necessary, appropriate or
desirable; provided, however, that no such change shall (i) alter or change the
amount or kind of consideration to be issued to holders of Xxxxx Stock as
provided for in this Agreement (the "Merger Consideration"), (ii) adversely
affect the tax treatment of Xxxxx'x stockholders as a result of receiving the
Merger Consideration or the Merger qualifying for "pooling of interests"
accounting treatment or (iii) materially impede or delay consummation of the
transactions contemplated by this Agreement; and provided further, that United
shall provide Xxxxx written notice of such change.
(b) Subject to the satisfaction or waiver of the conditions set
forth in Article VII, the Merger shall become effective upon the occurrence of
the filing in the office of the Virginia State Corporation Commission (the
"Corporation Commission") of articles of merger in accordance with Section
13.1-720 of the VSCA and the filing in the Office of the Secretary of State of
the State of West Virginia (the "West Virginia Secretary") of articles of
merger in accordance with Section 31-1-36 of the WVCA or such later date and
time as may be set forth in such articles and the issuance of a certificate of
merger by the Corporation Commission under the VSCA and the issuance of a
certificate of merger by the West Virginia Secretary. The Merger shall have
the effects prescribed in the WVCA and the VSCA.
(c) Articles of Incorporation and By-Laws. Subject to Section
2.02, the articles of incorporation and by-laws of United immediately after the
Merger shall be those of United as in effect immediately prior to the Effective
Time.
(d) Directors and Officers of the Surviving Corporation. The
directors and officers of United immediately after the Merger shall be the
directors and officers of United (except as provided in Section 6.15)
immediately prior to the Effective Time, until such time as their successors
shall be duly elected and qualified.
2.02 Articles Amendment. At the Effective Time, Article VI of the
United Restated Articles of Incorporation shall be amended to read as follows
(the "Articles Amendment"):
"VI. The amount of the authorized capital stock of the corporation
is $100,000,000 which shall be divided into 40,000,000 shares of a par
value of $2.50 per share."
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2.03 Effective Date and Effective Time. Subject to the
satisfaction or waiver of the conditions set forth in Article VII, the parties
shall cause the effective date of the Merger (the "Effective Date") to occur on
(i) the fifth business day to occur after the last of the conditions set forth
in Article VII shall have been satisfied or waived in accordance with the
terms of this Agreement (or, at the election of United, on the last business
day of the month in which such fifth business day occurs or, if such fifth
business day occurs within the last five business days of such month, on the
last business day of the succeeding month) or (ii) such other date to which the
parties may agree in writing; provided, however, that in no event shall the
Effective Date occur on or prior to January 1, 1998. The time on the Effective
Date when the Merger shall become effective is referred to as the "Effective
Time."
2.04 Plan of Merger. At the request of United, United and Xxxxx
shall enter into a separate plan of merger reflecting the terms hereof for
purposes of any filing requirement.
ARTICLE III
CONSIDERATION; EXCHANGE PROCEDURES
3.01 Merger Consideration. Subject to the provisions of this
Agreement, at the Effective Time, automatically by virtue of the Merger and
without any action on the part of any Person:
(a) Outstanding Xxxxx Common Stock and Xxxxx Rights. Each share,
excluding Treasury Stock, of Xxxxx Common Stock issued and outstanding
immediately prior to the Effective Time shall become and be converted into
0.85 of a share of United Common Stock (the "Exchange Ratio"). The
Exchange Ratio shall be subject to adjustment as set forth in Section 3.05.
(b) Outstanding United Stock. Each share of United Common Stock
issued and outstanding immediately prior to the Effective Time shall remain
issued and outstanding and unaffected by the Merger, subject to any
applicable dissenters or appraisal rights under the WVCA.
(c) Treasury Shares. Each share of Xxxxx Common Stock held as
Treasury Stock immediately prior to the Effective Time shall be canceled
and retired at the Effective Time and no consideration shall be issued in
exchange therefor.
3.02 Rights as Stockholders; Stock Transfers. At the Effective
Time, holders of Xxxxx Stock shall cease to be, and shall have no rights as,
stockholders of Xxxxx, other than to receive any dividend or other distribution
with respect to such Xxxxx Stock with a record date occurring prior to the
Effective Time and the consideration provided under this Article III. After
the
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Effective Time, there shall be no transfers on the stock transfer books of
Xxxxx or the Surviving Corporation of shares of Xxxxx Stock.
3.03 Fractional Shares. Notwithstanding any other provision
hereof, no fractional shares of United Common Stock and no certificates or
scrip therefor, or other evidence of ownership thereof, will be issued in the
Merger; instead, United shall pay to each holder of Xxxxx Common Stock who
would otherwise be entitled to a fractional share of United Common Stock (after
taking into account all Old Certificates delivered by such holder) an amount in
cash (without interest) determined by multiplying such fraction by the average
of the last sale prices of United Common Stock, as reported by NASDAQ reporting
system (as reported in The Wall Street Journal or, if not reported therein, in
another authoritative source), for the five NASDAQ trading days immediately
preceding the Effective Date.
3.04 Exchange Procedures. (a) At or prior to the Effective Time,
United shall deposit, or shall cause to be deposited, with United Bank (in such
capacity, the "Exchange Agent"), for the benefit of the holders of certificates
formerly representing shares of Xxxxx Common Stock ("Old Certificates"), for
exchange in accordance with this Article III, certificates representing the
shares of United Common Stock ("New Certificates") and an estimated amount of
cash (such cash and New Certificates, together with any dividends or
distributions with a record date occurring after the Effective Date with
respect thereto (without any interest on any such cash, dividends or
distributions), being hereinafter referred to as the "Exchange Fund") to be
paid pursuant to this Article III in exchange for outstanding shares of Xxxxx
Common Stock.
(b) As promptly as practicable after the Effective Date, United
shall send or cause to be sent to each former holder of record of shares of
Xxxxx Common Stock immediately prior to the Effective Time transmittal
materials for use in exchanging such stockholder's Old Certificates for the
consideration set forth in this Article III. United shall cause the New
Certificates into which shares of a stockholder's Xxxxx Common Stock are
converted on the Effective Date and/or any check in respect of any fractional
share interests or dividends or distributions which such person shall be
entitled to receive to be delivered to such stockholder upon delivery to the
Exchange Agent of Old Certificates representing such shares of Xxxxx Common
Stock (or indemnity reasonably satisfactory to United and the Exchange Agent,
if any of such certificates are lost, stolen or destroyed) owned by such
stockholder. No interest will be paid on any such cash to be paid in lieu of
fractional share interests or in respect of dividends or distributions which
any such person shall be entitled to receive pursuant to this Article III upon
such delivery.
(c) Notwithstanding the foregoing, neither the Exchange Agent, if
any, nor any party hereto shall be liable to any former holder of Xxxxx Stock
for any amount properly delivered to a public official pursuant to applicable
abandoned property, escheat or similar laws.
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(d) No dividends or other distributions with respect to United
Common Stock with a record date occurring after the Effective Time shall be
paid to the holder of any unsurrendered Old Certificate representing shares of
Xxxxx Common Stock converted in the Merger into the right to receive shares of
such United Common Stock until the holder thereof shall be entitled to receive
New Certificates in exchange therefor in accordance with the procedures set
forth in this Section 3.04, and, following 90 days after the Effective Date, no
such shares of Xxxxx Common Stock shall be eligible to vote until the holder of
Old Certificates is entitled to receive New Certificates in accordance with the
procedures set forth in this Section 3.04. After becoming so entitled in
accordance with this Section 3.04, the record holder thereof also shall be
entitled to receive any such dividends or other distributions, without any
interest thereon, which theretofore had become payable with respect to shares
of United Common Stock such holder had the right to receive upon surrender of
the Old Certificates.
(e) Any portion of the Exchange Fund that remains unclaimed by the
stockholders of Xxxxx for six months after the Effective Time shall be paid to
United. Any stockholders of Xxxxx who have not theretofore complied with this
Article III shall thereafter look only to United for payment of the shares of
United Common Stock, cash in lieu of any fractional shares and unpaid dividends
and distributions on United Common Stock deliverable in respect of each share
of Xxxxx Common Stock such stockholder holds as determined pursuant to this
Agreement, in each case, without any interest thereon.
3.05 Anti-Dilution Provisions. In the event United changes (or
establishes a record date for changing) the number of shares of United Common
Stock issued and outstanding prior to the Effective Date as a result of a stock
split, stock dividend, recapitalization or similar transaction with respect to
the outstanding United Common Stock and the record date therefor shall be prior
to the Effective Date, the Exchange Ratio shall be proportionately adjusted.
3.06 Options. (a) At the Effective Time, each outstanding option
to purchase shares of Xxxxx Common Stock under the Xxxxx Stock Plans (each, a
"Xxxxx Stock Option"), whether vested or unvested, shall be converted into an
option to acquire, on the same terms and conditions as were applicable under
such Xxxxx Stock Option, the number of shares of United Common Stock equal to
(a) the number of shares of Xxxxx Common Stock subject to the Xxxxx Stock
Option, multiplied by (b) the Exchange Ratio (such product rounded to the
nearest whole number) (a "Replacement Option"), at an exercise price per share
(rounded to the nearest whole cent) equal to (y) the aggregate exercise price
for the shares of Xxxxx Common Stock which were purchasable pursuant to such
Xxxxx Stock Option divided by (z) the number of full shares of United Common
Stock subject to such Replacement Option in accordance with the foregoing.
Notwithstanding the foregoing, each Xxxxx Stock Option which is intended to be
an "incentive stock option" (as defined in Section 422 of the Code) shall be
adjusted in accordance with the requirements of Section 424 of the Code. At or
prior to the Effective Time, Xxxxx shall use its best efforts, including using
its best efforts to obtain any necessary consents from optionees, with respect
to the Xxxxx Stock Plans to permit the replacement of the outstanding Xxxxx
Stock
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Options by United pursuant to this Section and to permit United to assume the
Xxxxx Stock Plans. Xxxxx shall further take all action necessary to amend the
Xxxxx Stock Plans to eliminate automatic grants or awards thereunder following
the Effective Time. At the Effective Time, United shall assume the Xxxxx Stock
Plans; provided, that such assumption shall be only in respect of the
Replacement Options and that United shall have no obligation with respect to
any awards under the Xxxxx Stock Plans other than the Replacement Options and
shall have no obligation to make any additional grants or awards under such
assumed Xxxxx Stock Plans.
(b) At all times after the Effective Time, United shall reserve
for issuance such number of shares of United Common Stock as necessary so as to
permit the exercise of options granted under the Xxxxx Stock Plans in the
manner contemplated by this Agreement and the instruments pursuant to which
such options were granted. United shall make all filings required under
federal and state securities laws no later than the Effective Time so as to
permit the exercise of such options and the sale of the shares received by the
optionee upon such exercise at and after the Effective Time and United shall
continue to make such filings thereafter as may be necessary to permit the
continued exercise of options and sale of such shares.
ARTICLE IV
ACTIONS PENDING ACQUISITION
4.01 Forebearances of Xxxxx. From the date hereof until the
Effective Time, except as expressly contemplated by this Agreement, without the
prior written consent of United, Xxxxx will not, and will cause each of its
Subsidiaries not to:
(a) Ordinary Course. Conduct the business of Xxxxx and its
Subsidiaries other than in the ordinary and usual course or fail to use
reasonable efforts to preserve intact their business organizations and
assets and maintain their rights, franchises and existing relations with
customers, suppliers, employees and business associates, or take any action
reasonably likely to have an adverse affect upon Xxxxx'x ability to perform
any of its material obligations under this Agreement.
(b) Capital Stock. Other than pursuant to Rights Previously
Disclosed and outstanding on the date hereof, (i) issue, sell or otherwise
permit to become outstanding, or authorize the creation of, any additional
shares of Xxxxx Stock or any Rights, (ii) enter into any agreement with
respect to the foregoing, or (iii) permit any additional shares of Xxxxx
Stock to become subject to new grants of employee or director stock
options, other Rights or similar stock-based employee rights.
(c) Dividends, Etc. (a) Make, declare, pay or set aside for
payment any dividend, other than (A) quarterly cash dividends on Xxxxx
Stock in an amount not to exceed $0.14 per share with record and payment
dates consistent with past practice, and (B) dividends from
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wholly owned Subsidiaries to Xxxxx or another wholly owned Subsidiary of
Xxxxx) on or in respect of, or declare or make any distribution on any
shares of Xxxxx Stock or (b) directly or indirectly adjust, split, combine,
redeem, reclassify, purchase or otherwise acquire, any shares of its
capital stock.
(d) Compensation; Employment Agreements; Etc. Enter into or amend
or renew any employment, consulting, severance or similar agreements or
arrangements with any director, officer or employee of Xxxxx or its
Subsidiaries, or grant any salary or wage increase or increase any employee
benefit, (including incentive or bonus payments) except (i) for normal
individual increases in compensation to employees in the ordinary course of
business consistent with past practice, (ii) for other changes that are
required by applicable law, (iii) to satisfy Previously Disclosed
contractual obligations existing as of the date hereof, or (iv) for grants
of awards to newly hired employees consistent with past practice.
(e) Benefit Plans. Enter into, establish, adopt or amend (except
(i) as may be required by applicable law or (ii) to satisfy Previously
Disclosed contractual obligations existing as of the date hereof) any
pension, retirement, stock option, stock purchase, savings, profit sharing,
deferred compensation, consulting, bonus, group insurance or other employee
benefit, incentive or welfare contract, plan or arrangement, or any trust
agreement (or similar arrangement) related thereto, in respect of any
director, officer or employee of Xxxxx or its Subsidiaries, or take any
action to accelerate the vesting or exercisability of stock options,
restricted stock or other compensation or benefits payable thereunder.
(f) Dispositions. Except as Previously Disclosed, sell, transfer,
mortgage, encumber or otherwise dispose of or discontinue any of its
assets, deposits, business or properties except in the ordinary course of
business and in a transaction that is not material to it and its
Subsidiaries taken as a whole.
(g) Acquisitions. Except as Previously Disclosed, acquire (other
than by way of foreclosures or acquisitions of control in a bona fide
fiduciary capacity or in satisfaction of debts previously contracted in
good faith, in each case in the ordinary and usual course of business
consistent with past practice) all or any portion of, the assets, business,
deposits or properties of any other entity.
(h) Governing Documents. Amend the Xxxxx Certificate, Xxxxx
By-laws or the certificate of incorporation or by-laws (or similar
governing documents) of any of Xxxxx'x Subsidiaries.
(i) Accounting Methods. Implement or adopt any change in its
accounting principles, practices or methods, other than as may be required
by generally accepted accounting principles.
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(j) Contracts. Except in the ordinary course of business
consistent with past practice, enter into or terminate any material
contract (as defined in Section 5.03(k)) or amend or modify in any material
respect any of its existing material contracts.
(k) Claims. Except in the ordinary course of business consistent
with past practice, settle any claim, action or proceeding, except for any
claim, action or proceeding which does not involve precedent for other
material claims, actions or proceedings and which involve solely money
damages in an amount, individually or in the aggregate for all such
settlements, that is not material to Xxxxx and its Subsidiaries, taken as a
whole.
(l) Adverse Actions. (a) Take any action while knowing that such
action would, or is reasonably likely to, prevent or impede the Merger
from qualifying (i) for "pooling of interests" accounting treatment or (ii)
as a reorganization within the meaning of Section 368 of the Code; or (b)
knowingly take any action that is intended or is reasonably likely to
result in (i) any of its representations and warranties set forth in this
Agreement being or becoming untrue in any material respect at any time at
or prior to the Effective Time, (ii) any of the conditions to the Merger
set forth in Article VII not being satisfied or (iii) a material violation
of any provision of this Agreement except, in each case, as may be required
by applicable law or regulation.
(m) Risk Management. Except as required by applicable law or
regulation, (i) implement or adopt any material change in its interest rate
and other risk management policies, procedures or practices; (ii) fail to
follow its existing policies or practices with respect to managing its
exposure to interest rate and other risk; or (iii) fail to use commercially
reasonable means to avoid any material increase in its aggregate exposure
to interest rate risk.
(n) Indebtedness. Incur any indebtedness for borrowed money other
than in the ordinary course of business.
(o) Commitments. Agree or commit to do any of the foregoing.
4.02 Forebearances of United. From the date hereof until the
Effective Time, except as expressly contemplated by this Agreement, without the
prior written consent of Xxxxx, United will not, and will cause each of its
Subsidiaries not to:
(a) Preservation. Fail to use reasonable efforts to preserve
intact in any material respect their business organizations and assets and
maintain their rights, franchises and existing relations with customers,
suppliers, employees and business associates.
(b) Extraordinary Dividends. Make, declare, pay or set aside for
payment any extraordinary dividend.
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(c) Adverse Actions. (a) Take any action while knowing that such
action would, or is reasonably likely to, prevent or impede the Merger
from qualifying (i) for "pooling of interests" accounting treatment or (ii)
as a reorganization within the meaning of Section 368 of the Code; or (b)
knowingly take any action that is intended or is reasonably likely to
result in (i) any of its representations and warranties set forth in this
Agreement being or becoming untrue in any material respect at any time at
or prior to the Effective Time, (ii) any of the conditions to the Merger
set forth in Article VII not being satisfied or (iii) a material violation
of any provision of this Agreement except, in each case, as may be required
by applicable law or regulation; provided, however, that nothing contained
herein shall limit the ability of United to exercise its rights under the
Stock Option Agreement.
(d) Commitments. Agree or commit to do any of the foregoing.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.01 Disclosure Schedules. On or prior to the date hereof, United
has delivered to Xxxxx a schedule and Xxxxx has delivered to United a schedule
(respectively, its "Disclosure Schedule") setting forth, among other things,
items the disclosure of which is necessary or appropriate either in response to
an express disclosure requirement contained in a provision hereof or as an
exception to one or more representations or warranties contained in Section
5.03 or 5.04 or to one or more of its covenants contained in Article IV;
provided, that (a) no such item is required to be set forth in a Disclosure
Schedule as an exception to a representation or warranty if its absence would
not be reasonably likely to result in the related representation or warranty
being deemed untrue or incorrect under the standard established by Section
5.02, and (b) the mere inclusion of an item in a Disclosure Schedule as an
exception to a representation or warranty shall not be deemed an admission by a
party that such item represents a material exception or fact, event or
circumstance or that such item is reasonably likely to result in a Material
Adverse Effect on the party making the representation. Xxxxx'x
representations, warranties and covenants contained in this Agreement shall not
be deemed to be untrue or breached as a result of effects arising solely from
actions taken in compliance with a written request of United.
5.02 Standard. No representation or warranty of Xxxxx or United
contained in Section 5.03 or 5.04 shall be deemed untrue or incorrect, and no
party hereto shall be deemed to have breached a representation or warranty, as
a consequence of the existence of any fact, event or circumstance unless such
fact, circumstance or event, individually or taken together with all other
facts, events or circumstances inconsistent with any representation or warranty
contained in Section 5.03 or 5.04 has had or is reasonably likely to have a
Material Adverse Effect. For purposes of this Agreement, "knowledge" shall
mean, with respect to a party hereto, actual
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knowledge of any officer of that party with the title, if any ranking not less
than senior vice president and that party's in-house counsel, if any.
5.03 Representations and Warranties of Xxxxx. Subject to Sections
5.01 and 5.02 and except as Previously Disclosed in a paragraph of its
Disclosure Schedule corresponding to the relevant paragraph below, Xxxxx hereby
represents and warrants to United:
(a) Organization, Standing and Authority. Xxxxx is a corporation
duly organized, validly existing and in good standing under the laws of the
Commonwealth of Virginia. Xxxxx is duly qualified to do business and is in
good standing in the states of the United States and any foreign
jurisdictions where its ownership or leasing of property or assets or the
conduct of its business requires it to be so qualified.
(b) Xxxxx Stock. As of the date hereof, the authorized capital
stock of Xxxxx consists solely of (i) 9,000,000 shares of Xxxxx Common
Stock, of which 5,117,405 shares were outstanding as of the date hereof,
and (ii) 1,000,000 shares of Xxxxx Preferred Stock, of which no shares are
outstanding. As of the date hereof, no shares of Xxxxx Common Stock and no
shares of Xxxxx Preferred Stock were held in treasury by Xxxxx or otherwise
owned by Xxxxx or its Subsidiaries ("Treasury Stock"). The outstanding
shares of Xxxxx Stock have been duly authorized and are validly issued and
outstanding, fully paid and nonassessable, and subject to no preemptive
rights (and were not issued in violation of any preemptive rights). As of
the date hereof, except as Previously Disclosed in its Disclosure Schedule,
there are no shares of Xxxxx Stock authorized and reserved for issuance,
Xxxxx does not have any Rights issued or outstanding with respect to Xxxxx
Stock, and Xxxxx does not have any commitment to authorize, issue or sell
any Xxxxx Stock or Rights, except pursuant to this Agreement and the Stock
Option Agreement. The number of shares of Xxxxx Common Stock which are
issuable and reserved for issuance upon exercise of Xxxxx Stock Options as
of the date hereof are Previously Disclosed in Xxxxx'x Disclosure Schedule.
(c) Subsidiaries. (i)(A) Xxxxx has Previously Disclosed a list of
all of its Subsidiaries together with the jurisdiction of organization of
each such Subsidiary, (B) except as Previously Disclosed, it owns, directly
or indirectly, all the issued and outstanding equity securities of each of
its Subsidiaries, (C) no equity securities of any of its Subsidiaries are
or may become required to be issued (other than to it or its wholly-owned
Subsidiaries) by reason of any Right or otherwise, (D) there are no
contracts, commitments, understandings or arrangements by which any of such
Subsidiaries is or may be bound to sell or otherwise transfer any equity
securities of any such Subsidiaries (other than to it or its wholly-owned
Subsidiaries), (E) there are no contracts, commitments, understandings, or
arrangements relating to its rights to vote or to dispose of such
securities and (F) all the equity securities of each Subsidiary held by
Xxxxx or its Subsidiaries are fully paid and nonassessable (except
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pursuant to 12 U.S.C. Section 55) and are owned by Xxxxx or its Subsidiaries
free and clear of any Liens.
(ii) Xxxxx does not own beneficially, directly or indirectly, any
equity securities or similar interests of any Person, or any interest in a
partnership or joint venture of any kind, other than its Subsidiaries.
(iii) Each of Xxxxx'x Subsidiaries has been duly organized and is
validly existing in good standing under the laws of the jurisdiction of its
organization, and is duly qualified to do business and in good standing in
the jurisdictions where its ownership or leasing of property or the conduct
of its business requires it to be so qualified.
(d) Corporate Power. Each of Xxxxx and its Subsidiaries has the
corporate power and authority to carry on its business as it is now being
conducted and to own all its properties and assets; and Xxxxx has the
corporate power and authority to execute, deliver and perform its
obligations under this Agreement and the Stock Option Agreement and to
consummate the transactions contemplated hereby and thereby.
(e) Corporate Authority. Subject in the case of this Agreement to
receipt of the requisite approval of this Agreement (including the
agreement of merger set forth herein) by the holders of more than
two-thirds of the outstanding shares of Xxxxx Common Stock entitled to vote
thereon (which is the only shareholder vote required thereon), this
Agreement, the Stock Option Agreement and the transactions contemplated
hereby and thereby have been authorized by all necessary corporate action
of Xxxxx and the Xxxxx Board prior to the date hereof. This Agreement is a
valid and legally binding obligation of Xxxxx, enforceable in accordance
with its terms (except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
similar laws of general applicability relating to or affecting creditors'
rights or by general equity principles). In approving this Agreement and
the Merger and the related transactions, the Board of Directors of Xxxxx
has satisfied its obligations under Article 8 of the Xxxxx Certificate.
The Xxxxx Board of Directors has received the written opinion of Friedman,
Billings, Xxxxxx & Co., Inc. to the effect that as of the date hereof the
consideration to be received by the holders of Xxxxx Common Stock in the
Merger is fair to the holders of Xxxxx Common Stock from a financial point
of view.
(f) Regulatory Filings; No Defaults. (i) No consents or approvals
of, or filings or registrations with, any Governmental Authority or with
any third party are required to be made or obtained by Xxxxx or any of its
Subsidiaries in connection with the execution, delivery or performance by
Xxxxx of this Agreement or the Stock Option Agreement or to consummate the
Merger except for (A) filings of applications or notices with federal and
Virginia banking authorities, (B) filings with the SEC and state securities
authorities, and (C) the filing of articles of merger with the Corporation
Commission pursuant to the VSCA and
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the issuance of a certificate of merger in connection therewith. As of the
date hereof, Xxxxx is not aware of any reason why the approvals set forth
in Section 7.01(b) will not be received without the imposition of a
condition, restriction or requirement of the type described in Section
7.01(b).
(ii) Subject to receipt of the regulatory approvals referred to in
the preceding paragraph, and expiration of related waiting periods, and
required filings under federal and state securities laws, the execution,
delivery and performance of this Agreement and the Stock Option Agreement
and the consummation of the transactions contemplated hereby and thereby do
not and will not (A) constitute a breach or violation of, or a default
under, or give rise to any Lien, any acceleration of remedies or any right
of termination under, any law, rule or regulation or any judgment, decree,
order, governmental permit or license, or agreement, indenture or
instrument of Xxxxx or of any of its Subsidiaries or to which Xxxxx or any
of its Subsidiaries or properties is subject or bound, (B) constitute a
breach or violation of, or a default under, the Xxxxx Certificate or the
Xxxxx By-Laws, or (C) require any consent or approval under any such law,
rule, regulation, judgment, decree, order, governmental permit or license,
agreement, indenture or instrument.
(g) Financial Reports and SEC Documents. (i) Xxxxx'x Annual
Reports on Form 10-K for the fiscal years ended December 31, 1994, 1995 and
1996, and all other reports, registration statements, definitive proxy
statements or information statements filed or to be filed by it or any of
its Subsidiaries subsequent to December 31, 1994 under the Securities Act,
or under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, in the form
filed or to be filed (collectively, Xxxxx'x "SEC Documents") with the SEC,
as of the date filed, (A) complied or will comply in all material respects
with the applicable requirements under the Securities Act or the Exchange
Act, as the case may be, and (B) did not and will not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; and each of
the balance sheets or statements of condition contained in or incorporated
by reference into any such SEC Document (including the related notes and
schedules thereto) fairly presents, or will fairly present, the financial
position of Xxxxx and its Subsidiaries as of its date, and each of the
statements of income and changes in stockholders' equity and cash flows or
equivalent statements in such SEC Documents (including any related notes
and schedules thereto) fairly presents, or will fairly present, the results
of operations, changes in stockholders' equity and cash flows, as the case
may be, of Xxxxx and its Subsidiaries for the periods to which they relate,
in each case in accordance with generally accepted accounting principles
consistently applied during the periods involved, except in each case as
may be noted therein, subject to normal year-end audit adjustments and the
absence of footnotes in the case of unaudited statements.
(ii) Since December 31, 1996, Xxxxx and its Subsidiaries have not
incurred any liability other than in the ordinary course of business
consistent with past practice.
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(iii) Since December 31, 1996, (A) Xxxxx and its Subsidiaries have
conducted their respective businesses in the ordinary and usual course
consistent with past practice (excluding matters related to this Agreement
and the transactions contemplated hereby) and (B) no event has occurred or
circumstance arisen that, individually or taken together with all other
facts, circumstances and events (described in any paragraph of Section 5.03
or otherwise), is reasonably likely to have a Material Adverse Effect with
respect to Xxxxx.
(h) Litigation. No litigation, claim or other proceeding before
any court or governmental agency is pending against Xxxxx or any of its
Subsidiaries and, to Xxxxx'x knowledge, no such litigation, claim or other
proceeding has been threatened.
(i) Regulatory Matters. (i) Neither Xxxxx nor any of its
Subsidiaries or properties is a party to or is subject to any order, decree,
agreement, memorandum of understanding or similar arrangement with, or a
commitment letter or similar submission to, or extraordinary supervisory letter
from, any federal or state governmental agency or authority charged with the
supervision or regulation of financial institutions (or their holding
companies) or issuers of securities or engaged in the insurance of deposits
(including, without limitation, the Office of the Comptroller of the Currency,
the Federal Reserve System and the FDIC) or the supervision or regulation of it
or any of its Subsidiaries (collectively, the "Regulatory Authorities").
(ii) Neither it nor any of its Subsidiaries has been advised by any
Regulatory Authority that such Regulatory Authority is contemplating issuing or
requesting (or is considering the appropriateness of issuing or requesting) any
such order, decree, agreement, memorandum of understanding, commitment letter,
supervisory letter or similar submission.
(j) Compliance with Laws. Each of Xxxxx and its Subsidiaries:
(i) is in compliance with all applicable federal, state, local
and foreign statutes, laws, regulations, ordinances, rules, judgments,
orders or decrees applicable thereto or to the employees conducting
such businesses, including, without limitation, the Equal Credit
Opportunity Act, the Fair Housing Act, the Community Reinvestment Act,
the Home Mortgage Disclosure Act and all other applicable fair lending
laws and other laws relating to discriminatory business practices;
(ii) has all permits, licenses, authorizations, orders and
approvals of, and has made all filings, applications and registrations
with, all Governmental Authorities that are required in order to
permit them to own or lease their properties and to conduct their
businesses as presently conducted; all such permits, licenses,
certificates of authority, orders and approvals are in full force and
effect and, to Xxxxx'x knowledge, no suspension or cancellation of any
of them is threatened; and
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(iii) has received, since December 31, 1995, no notification or
communication from any Governmental Authority (A) asserting that Xxxxx
or any of its Subsidiaries is not in compliance with any of the
statutes, regulations, or ordinances which such Governmental Authority
enforces or (B) threatening to revoke any license, franchise, permit,
or governmental authorization (nor, to Xxxxx'x knowledge, do any
grounds for any of the foregoing exist).
(k) Material Contracts; Defaults. Except for this Agreement, the
Stock Option Agreement and those agreements and other documents filed as
exhibits to its SEC Documents, neither it nor any of its Subsidiaries is a
party to, bound by or subject to any agreement, contract, arrangement,
commitment or understanding (whether written or oral) (i) that is a
"material contract" within the meaning of Item 601(b)(10) of the SEC's
Regulation S-K or (ii) that restricts or limits in any way the conduct of
business by it or any of its Subsidiaries (including without limitation a
non-compete or similar provision). Neither it nor any of its Subsidiaries
is in default under any contract, agreement, commitment, arrangement,
lease, insurance policy or other instrument to which it is a party, by
which its respective assets, business, or operations may be bound or
affected, or under which it or its respective assets, business, or
operations receive benefits, and there has not occurred any event that,
with the lapse of time or the giving of notice or both, would constitute
such a default.
(l) No Brokers. No action has been taken by Xxxxx that would give
rise to any valid claim against any party hereto for a brokerage
commission, finder's fee or other like payment with respect to the
transactions contemplated by this Agreement, excluding a Previously
Disclosed fee to be paid to Friedman, Billings, Xxxxxx & Co., Inc.
(m) Employee Benefit Plans. (i) Section 5.03(m)(i) of Xxxxx'x
Disclosure Schedule contains a complete and accurate list of all existing
bonus, incentive, deferred compensation, pension, retirement,
profit-sharing, thrift, savings, employee stock ownership, stock bonus,
stock purchase, restricted stock, stock option, severance, welfare and
fringe benefit plans, employment or severance agreements and all similar
practices, policies and arrangements in which any employee or former
employee (the "Employees"), consultant or former consultant (the
"Consultants") or director or former director (the "Directors") of Xxxxx or
any of its Subsidiaries participates or to which any such Employees,
Consultants or Directors are a party (the "Compensation and Benefit
Plans"). Neither Xxxxx nor any of its Subsidiaries has any commitment to
create any additional Compensation and Benefit Plan or to modify or change
any existing Compensation and Benefit Plan.
(ii) Each Compensation and Benefit Plan has been operated and
administered in all material respects in accordance with its terms and with
applicable law, including, but not limited to, ERISA, the Code, the
Securities Act, the Exchange Act, the Age Discrimination in Employment Act,
or any regulations or rules promulgated thereunder, and all filings,
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disclosures and notices required by ERISA, the Code, the Securities Act,
the Exchange Act, the Age Discrimination in Employment Act and any other
applicable law have been timely made. Each Compensation and Benefit Plan
which is an "employee pension benefit plan" within the meaning of Section
3(2) of ERISA (a "Pension Plan") and which is intended to be qualified
under Section 401(a) of the Code has received a favorable determination
letter (including a determination that the related trust under such
Compensation and Benefit Plan is exempt from tax under Section 501(a) of
the Code) from the Internal Revenue Service ("IRS"), and Xxxxx is not aware
of any circumstances likely to result in revocation of any such favorable
determination letter. There is no material pending or, to the knowledge of
Xxxxx, threatened legal action, suit or claim relating to the Compensation
and Benefit Plans. Neither Xxxxx nor any of its Subsidiaries has engaged in
a transaction, or omitted to take any action, with respect to any
Compensation and Benefit Plan that would reasonably be expected to subject
Xxxxx or any of its Subsidiaries to a tax or penalty imposed by either
Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of
Section 4975 of the Code that the taxable period of any such transaction
expired as of the date hereof.
(iii) No liability (other than for payment of premiums to the PBGC
which have been made or will be made on a timely basis) under Title IV of
ERISA has been or is expected to be incurred by Xxxxx or any of its
Subsidiaries with respect to any ongoing, frozen or terminated
"single-employer plan", within the meaning of Section 4001(a)(15) of ERISA,
currently or formerly maintained by any of them, or any single-employer
plan of any entity (an "ERISA Affiliate") which is considered one employer
with Xxxxx under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of
the Code (an "ERISA Affiliate Plan"). None of Xxxxx, any of its
Subsidiaries or any ERISA Affiliate has contributed, or has been obligated
to contribute, to a multiemployer plan under Subtitle E of Title IV of
ERISA at any time since September 26, 1980. No notice of a "reportable
event", within the meaning of Section 4043 of ERISA for which the 30-day
reporting requirement has not been waived, has been required to be filed
for any Compensation and Benefit Plan or by any ERISA Affiliate Plan within
the 12-month period ending on the date hereof, and no such notice will be
required to be filed as a result of the transactions contemplated by this
Agreement. The PBGC has not instituted proceedings to terminate any
Pension Plan or ERISA Affiliate Plan and, to Xxxxx'x knowledge, no
condition exists that presents a material risk that such proceedings will
be instituted. To the knowledge of Xxxxx, there is no pending
investigation or enforcement action by the PBGC, the Department of Labor
(the "DOL") or IRS or any other governmental agency with respect to any
Compensation and Benefit Plan. Under each Pension Plan and ERISA Affiliate
Plan, as of the date of the most recent actuarial valuation performed prior
to the date of this Agreement, the actuarially determined present value of
all "benefit liabilities", within the meaning of Section 4001(a)(16) of
ERISA (as determined on the basis of the actuarial assumptions contained in
such actuarial valuation of such Pension Plan or ERISA Affiliate Plan), did
not exceed the then current value of the assets of such Pension Plan or
ERISA Affiliate Plan and since such date there has been neither an adverse
change in the financial condition of such Pension Plan or ERISA Affiliate
Plan nor any
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amendment or other change to such Pension Plan or ERISA Affiliate Plan that
would increase the amount of benefits thereunder which reasonably could be
expected to change such result.
(iv) All contributions required to be made under the terms of any
Compensation and Benefit Plan or ERISA Affiliate Plan or any employee
benefit arrangements under any collective bargaining agreement to which
Xxxxx or any of its Subsidiaries is a party have been timely made or have
been reflected on Xxxxx'x financial statements. Neither any Pension Plan
nor any ERISA Affiliate Plan has an "accumulated funding deficiency"
(whether or not waived) within the meaning of Section 412 of the Code or
Section 302 of ERISA and all required payments to the PBGC with respect to
each Pension Plan or ERISA Affiliate Plan have been made on or before their
due dates. None of Xxxxx, any of its Subsidiaries or any ERISA Affiliate
(x) has provided, or would reasonably be expected to be required to
provide, security to any Pension Plan or to any ERISA Affiliate Plan
pursuant to Section 401(a)(29) of the Code, and (y) has taken any action,
or omitted to take any action, that has resulted, or would reasonably be
expected to result, in the imposition of a lien under Section 412(n) of the
Code or pursuant to ERISA.
(v) Neither Xxxxx nor any of its Subsidiaries has any obligations to
provide retiree health and life insurance or other retiree death benefits
under any Compensation and Benefit Plan, other than benefits mandated by
Section 4980B of the Code, and each such Compensation and Benefit Plan may
be amended or terminated without incurring liability thereunder. There has
been no communication to Employees by Xxxxx or any of its Subsidiaries that
would reasonably be expected to promise or guarantee such Employees retiree
health or life insurance or other retiree death benefits on a permanent
basis.
(vi) Xxxxx and its Subsidiaries do not maintain any Compensation and
Benefit Plans covering foreign Employees.
(vii) With respect to each Compensation and Benefit Plan, if
applicable, Xxxxx has provided or made available to United, true and
complete copies of existing: (A) Compensation and Benefit Plan documents
and amendments thereto; (B) trust instruments and insurance contracts; (C)
two most recent Forms 5500 filed with the IRS; (D) most recent actuarial
report and financial statement; (E) the most recent summary plan
description; (F) forms filed with the PBGC (other than for premium
payments); (G) most recent determination letter issued by the IRS; (H) any
Form 5310 or Form 5330 filed with the IRS; and (I) most recent
nondiscrimination tests performed under ERISA and the Code (including
401(k) and 401(m) tests).
(viii) Except as disclosed on Section 5.03(m)(viii) of Xxxxx'x
Disclosure Schedule, the consummation of the transactions contemplated by
this Agreement would not, directly or indirectly (including, without
limitation, as a result of any termination of employment prior to
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or following the Effective Time) reasonably be expected to (A) entitle any
Employee, Consultant or Director to any payment (including severance pay or
similar compensation) or any increase in compensation, (B) result in the
vesting or acceleration of any benefits under any Compensation and Benefit
Plan or (C) result in any material increase in benefits payable under any
Compensation and Benefit Plan.
(ix) Except as disclosed on Section 5.03(m)(ix) of Xxxxx'x Disclosure
Schedule, neither Xxxxx nor any of its Subsidiaries maintains any
compensation plans, programs or arrangements the payments under which would
not reasonably be expected to be deductible as a result of the limitations
under Section 162(m) of the Code and the regulations issued thereunder.
(x) Except as disclosed on Section 5.03(m)(x) of Xxxxx'x Disclosure
Schedule, as a result, directly or indirectly, of the transactions
contemplated by this Agreement (including, without limitation, as a result
of any termination of employment prior to or following the Effective Time),
none of United, Xxxxx or the Surviving Corporation, or any of their
respective Subsidiaries will be obligated to make a payment that would be
characterized as an "excess parachute payment" to an individual who is a
"disqualified individual" (as such terms are defined in Section 280G of the
Code), without regard to whether such payment is reasonable compensation
for personal services performed or to be performed in the future.
(n) Labor Matters. Neither Xxxxx nor any of its Subsidiaries is a
party to or is bound by any collective bargaining agreement, contract or
other agreement or understanding with a labor union or labor organization,
nor is Xxxxx or any of its Subsidiaries the subject of a proceeding
asserting that it or any such Subsidiary has committed an unfair labor
practice (within the meaning of the National Labor Relations Act) or
seeking to compel Xxxxx or any such Subsidiary to bargain with any labor
organization as to wages or conditions of employment, nor is there any
strike or other labor dispute involving it or any of its Subsidiaries
pending or, to Xxxxx'x knowledge, threatened, nor is Xxxxx aware of any
activity involving its or any of its Subsidiaries' employees seeking to
certify a collective bargaining unit or engaging in other organizational
activity.
(o) Takeover Laws; Dissenters Rights. Xxxxx has taken all action
required to be taken by it in order to exempt this Agreement, the Stock
Option Agreement and the transactions contemplated hereby and thereby from,
and this Agreement, the Stock Option Agreement and the transactions
contemplated hereby and thereby are exempt from, the requirements of any
"moratorium", "control share", "fair price", "affiliate transaction",
"business combination" or other antitakeover laws and regulations of any
state (collectively, "Takeover Laws"), including, without limitation, the
Commonwealth of Virginia, and including, without limitation, Sections
13.1-725 through 13.1-728 of the VSCA (because a majority of Xxxxx'x
disinterested directors approved such transactions for such purposes prior
to any "determination date" with respect to United) and Sections 13.1-728.1
through 13.1-728.9 of
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the VSCA. The provisions of Article 7 of the Xxxxx Certificate do not
apply to the entering into of this Agreement, this Agreement and the
transactions contemplated hereby, including the Merger, as they have been
approved by the required majority votes of the directors referred to
therein. The provisions of Article 7 of the Xxxxx Certificate do not apply
to the entering into of the Stock Option Agreement, the Stock Option
Agreement and the transactions contemplated thereby. Holders of Xxxxx
Common Stock do not have dissenters' rights in connection with the Merger.
(p) Environmental Matters. To Xxxxx'x knowledge, neither the
conduct nor operation of Xxxxx or its Subsidiaries nor any condition of any
property presently or previously owned, leased or operated by any of them
(including, without limitation, in a fiduciary or agency capacity), or on
which any of them holds a Lien, violates or violated Environmental Laws and
to Xxxxx'x knowledge, no condition has existed or event has occurred with
respect to any of them or any such property that, with notice or the
passage of time, or both, is reasonably likely to result in liability under
Environmental Laws. To Xxxxx'x knowledge, neither Xxxxx nor any of its
Subsidiaries has received any notice from any person or entity that Xxxxx
or its Subsidiaries or the operation or condition of any property ever
owned, leased, operated, or held as collateral or in a fiduciary capacity
by any of them are or were in violation of or otherwise are alleged to have
liability under any Environmental Law, including, but not limited to,
responsibility (or potential responsibility) for the cleanup or other
remediation of any pollutants, contaminants, or hazardous or toxic wastes,
substances or materials at, on, beneath, or originating from any such
property.
(q) Tax Matters. (i) All Tax Returns that are required to be filed
by or with respect to Xxxxx and its Subsidiaries have been duly filed, (ii)
all Taxes shown to be due on the Tax Returns referred to in clause (i) have
been paid in full, (iii) the Tax Returns referred to in clause (i) have
been examined by the Internal Revenue Service or the appropriate state,
local or foreign taxing authority or the period for assessment of the Taxes
in respect of which such Tax Returns were required to be filed has expired,
(iv) all deficiencies asserted or assessments made as a result of such
examinations have been paid in full, (v) no issues that have been raised by
the relevant taxing authority in connection with the examination of any of
the Tax Returns referred to in clause (i) are currently pending, and (vi)
no waivers of statutes of limitation have been given by or requested with
respect to any Taxes of Xxxxx or its Subsidiaries. Xxxxx has made
available to United true and correct copies of the United States federal
income Tax Returns filed by Xxxxx and its Subsidiaries for each of the
three most recent fiscal years ended on or before December 31, 1996.
Neither Xxxxx nor any of its Subsidiaries has any liability with respect to
income, franchise or similar Taxes that accrued on or before the end of the
most recent period covered by Xxxxx'x SEC Documents filed prior to the date
hereof in excess of the amounts accrued with respect thereto that are
reflected in the financial statements included in Xxxxx'x SEC Documents
filed on or prior to the date hereof. As of the date hereof, neither Xxxxx
nor any of its Subsidiaries has any
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reason to believe that any conditions exist that might prevent or impede
the Merger from qualifying as a reorganization within the meaning of
Section 368(a) of the Code.
(ii) No Tax is required to be withheld pursuant to Section 1445 of
the Code as a result of the transfer contemplated by this Agreement.
(iii) Xxxxx and its Subsidiaries will not be liable for any taxes as a
result of any Covered Transaction.
(r) Risk Management Instruments. All interest rate swaps, caps,
floors, option agreements, futures and forward contracts and other similar
risk management arrangements, whether entered into for Xxxxx'x own account,
or for the account of one or more of Xxxxx'x Subsidiaries or their
customers (all of which are listed on Xxxxx'x Disclosure Schedule), were
entered into (i) in accordance with prudent business practices and all
applicable laws, rules, regulations and regulatory policies and (ii) with
counterparties believed to be financially responsible at the time; and each
of them constitutes the valid and legally binding obligation of Xxxxx or
one of its Subsidiaries, enforceable in accordance with its terms (except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and similar laws of general
applicability relating to or affecting creditors' rights or by general
equity principles), and is in full force and effect. Neither Xxxxx nor its
Subsidiaries, nor to Xxxxx'x knowledge any other party thereto, is in
breach of any of its obligations under any such agreement or arrangement.
(s) Books and Records. The books and records of Xxxxx and its
Subsidiaries have been fully, properly and accurately maintained in all
material respects, and there are no material inaccuracies or discrepancies
of any kind contained or reflected therein and they fairly reflect the
substance of events and transactions included therein.
(t) Insurance. Xxxxx'x Disclosure Schedule sets forth all of the
insurance policies, binders, or bonds maintained by Xxxxx or its
Subsidiaries. Xxxxx and its Subsidiaries are insured with reputable
insurers against such risks and in such amounts as the management of Xxxxx
reasonably has determined to be prudent in accordance with industry
practices. All such insurance policies are in full force and effect; Xxxxx
and its Subsidiaries are not in material default thereunder; and all claims
thereunder have been filed in due and timely fashion.
(u) Accounting Treatment. As of the date hereof, it is aware of no
reason why the Merger will fail to qualify for "pooling of interests"
accounting treatment.
(v) Disclosure. The representations and warranties contained in
this Section 5.03 do not contain any untrue statement of a material fact or
omit to state any material fact necessary
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in order to make the statements and information contained in this Section
5.03 not misleading.
5.04 Representations and Warranties of United. Subject to Sections
5.01 and 5.02 and except as Previously Disclosed in a paragraph of its
Disclosure Schedule corresponding to the relevant paragraph below, United
hereby represents and warrants to Xxxxx as follows:
(a) Organization, Standing and Authority. United is a corporation
duly organized, validly existing and in good standing under the laws of the
State of West Virginia. United is duly qualified to do business and is in
good standing in the states of the United States and foreign jurisdictions
where its ownership or leasing of property or assets or the conduct of its
business requires it to be so qualified.
(b) United Stock. (i) As of the date hereof, the authorized
capital stock of United consists solely of 20,000,000 shares of United
Common Stock, of which no more than 15,295,130 shares were outstanding as
of the date hereof. As of the date hereof, except as set forth in its
Disclosure Schedule, United does not have any Rights issued or outstanding
with respect to United Stock and United does not have any commitment to
authorize, issue or sell any United Stock or Rights, except pursuant to
this Agreement. The outstanding shares of United Common Stock have been
duly authorized and are validly issued and outstanding, fully paid and
nonassessable, and subject to no preemptive rights (and were not issued in
violation of any preemptive rights).
(ii) The shares of United Common Stock to be issued in exchange for
shares of Xxxxx Common Stock in the Merger, when issued in accordance with
the terms of this Agreement, will be duly authorized, validly issued, fully
paid and nonassessable and subject to no preemptive rights.
(c) Subsidiaries. Each of United's Subsidiaries has been duly
organized and is validly existing in good standing under the laws of the
jurisdiction of its organization, and is duly qualified to do business and
is in good standing in the jurisdictions where its ownership or leasing of
property or the conduct of its business requires it to be so qualified and
it owns, directly or indirectly, all the issued and outstanding equity
securities of each of its Significant Subsidiaries.
(d) Corporate Power. Each of United and its Subsidiaries has the
corporate power and authority to carry on its business as it is now being
conducted and to own all its properties and assets; and United has the
corporate power and authority to execute, deliver and perform its
obligations under this Agreement and the Stock Option Agreement and to
consummate the transactions contemplated hereby and thereby.
(e) Corporate Authority. Subject in the case of this Agreement to
receipt of the requisite approval of this Agreement (including the
agreement of merger set forth herein) and the Articles Amendment by the
holders of a majority of the outstanding shares of United
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Common Stock entitled to vote thereon (which are the only shareholder votes
required thereon), this Agreement, the Stock Option Agreement and the
transactions contemplated hereby and thereby have been authorized by all
necessary corporate action of United and the United Board prior to the date
hereof. This Agreement is a valid and legally binding agreement of United,
enforceable in accordance with its terms (except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and similar laws of general applicability relating to
or affecting creditors' rights or by general equity principles).
(f) Regulatory Approvals; No Defaults. (i) No consents or approvals
of, or filings or registrations with, any Governmental Authority or with
any third party are required to be made or obtained by United or any of its
Subsidiaries in connection with the execution, delivery or performance by
United of this Agreement or to consummate the Merger except for (A) the
filing of applications and notices, as applicable, with the federal and
state banking authorities; (B) the adoption and approval by the
shareholders of United of this Agreement and the Articles Amendment; (C)
the filing and declaration of effectiveness of the Registration Statement;
(D) the filing of articles of merger with the Corporation Commission
pursuant to the VSCA and the West Virginia Secretary pursuant to the WVCA
and the issuance of related certificates of merger and the filing of the
Articles Amendment with the West Virginia Secretary of State; (E) such
filings as are required to be made or approvals as are required to be
obtained under the securities or "Blue Sky" laws of various states in
connection with the issuance of United Stock in the Merger; and (F) receipt
of the approvals set forth in Section 7.01(b). As of the date hereof,
United is not aware of any reason why the approvals set forth in Section
7.01(b) will not be received without the imposition of a condition,
restriction or requirement of the type described in Section 7.01(b).
(ii) Subject to the satisfaction of the requirements referred to in
the preceding paragraph and expiration of the related waiting periods, and
required filings under federal and state securities laws, the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby do not and will not (A) constitute a
breach or violation of, or a default under, or give rise to any Lien, any
acceleration of remedies or any right of termination under, any law, rule
or regulation or any judgment, decree, order, governmental permit or
license, or agreement, indenture or instrument of United or of any of its
Subsidiaries or to which United or any of its Subsidiaries or properties is
subject or bound, (B) constitute a breach or violation of, or a default
under, the certificate of incorporation or by-laws (or similar governing
documents) of United or any of its Subsidiaries, or (C) require any consent
or approval under any such law, rule, regulation, judgment, decree, order,
governmental permit or license, agreement, indenture or instrument.
(g) Financial Reports and SEC Documents; Material Adverse Effect.
(i) United's SEC Documents, as of the date filed, (A) complied or will
comply in all material respects with the applicable requirements under the
Securities Act or the Exchange Act, as the case may be, and (B) did not and
will not contain any untrue statement of a material fact or omit to state a
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material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; and each of the balance sheets or statements of
condition contained in or incorporated by reference into any such SEC
Document (including the related notes and schedules thereto) fairly
presents, or will fairly present, the financial position of United and its
Subsidiaries as of its date, and each of the statements of income or
results of operations and changes in stockholders' equity and cash flows or
equivalent statements in such SEC Documents (including any related notes
and schedules thereto) fairly presents, or will fairly present, the results
of operations, changes in stockholders' equity and cash flows, as the case
may be, of United and its Subsidiaries for the periods to which they
relate, in each case in accordance with generally accepted accounting
principles consistently applied during the periods involved, except in each
case as may be noted therein, subject to normal year-end audit adjustments
in the case of unaudited statements.
(ii) Since December 31, 1996, no event has occurred or circumstance
arisen that, individually or taken together with all other facts,
circumstances and events (described in any paragraph of Section 5.04 or
otherwise), is reasonably likely to have a Material Adverse Effect with
respect to United.
(h) Litigation; Regulatory Action. (iii) No litigation, claim or
other proceeding before any Governmental Authority is pending against
United or any of its Subsidiaries and, to the best of United's knowledge,
no such litigation, claim or other proceeding has been threatened.
(ii) Neither United nor any of its Subsidiaries or properties is a
party to or is subject to any order, decree, agreement, memorandum of
understanding or similar arrangement with, or a commitment letter or
similar submission to, or extraordinary supervisory letter from a
Regulatory Authority, nor has United or any of its Subsidiaries been
advised by a Regulatory Authority that such agency is contemplating issuing
or requesting (or is considering the appropriateness of issuing or
requesting) any such order, decree, agreement, memorandum of understanding,
commitment letter, supervisory letter or similar submission.
(i) Compliance with Laws. Each of United and its Subsidiaries:
(i) is in compliance with all applicable federal, state, local
and foreign statutes, laws, regulations, ordinances, rules, judgments,
orders or decrees applicable thereto or to the employees conducting
such businesses, including, without limitation, the Equal Credit
Opportunity Act, the Fair Housing Act, the Community Reinvestment Act,
the Home Mortgage Disclosure Act and all other applicable fair lending
laws and other laws relating to discriminatory business practices; and
(ii) has all permits, licenses, authorizations, orders and
approvals of, and has made all filings, applications and
registrations with, all Governmental Authorities that are
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required in order to permit them to conduct their businesses
substantially as presently conducted; all such permits, licenses,
certificates of authority, orders and approvals are in full force and
effect and, to the best of its knowledge, no suspension or
cancellation of any of them is threatened; and
(iv) has received, since December 31, 1995, no notification or
communication from any Governmental Authority (A) asserting that
United or any of its Subsidiaries is not in compliance with any of the
statutes, regulations, or ordinances which such Governmental Authority
enforces or (B) threatening to revoke any license, franchise, permit,
or governmental authorization (nor, to United's knowledge, do any
grounds for any of the foregoing exist).
(j) No Brokers. No action has been taken by United that would give
rise to any valid claim against any party hereto for a brokerage
commission, finder's fee or other like payment with respect to the
transactions contemplated by this Agreement.
(k) Takeover Laws. United has taken all action required to be taken
by it in order to exempt this Agreement, the Stock Option Agreement and the
transactions contemplated hereby and thereby from, and this Agreement, the
Stock Option Agreement and the transactions contemplated hereby and thereby
are exempt from, the requirements of any Takeover Laws applicable to
United.
(l) Environmental Matters. To United's knowledge, neither the
conduct nor operation of United or its Subsidiaries nor any condition of
any property presently or previously owned, leased or operated by any of
them (including, without limitation, in a fiduciary or agency capacity), or
on which any of them holds a Lien, violates or violated Environmental Laws
and to Xxxxx'x knowledge no condition has existed or event has occurred
with respect to any of them or any such property that, with notice or the
passage of time, or both, is reasonably likely to result in liability under
Environmental Laws. To United's knowledge, neither United nor any of its
Subsidiaries has received any notice from any person or entity that United
or its Subsidiaries or the operation or condition of any property ever
owned, leased, operated, or held as collateral or in a fiduciary capacity
by any of them are or were in violation of or otherwise are alleged to have
liability under any Environmental Law, including, but not limited to,
responsibility (or potential responsibility) for the cleanup or other
remediation of any pollutants, contaminants, or hazardous or toxic wastes,
substances or materials at, on, beneath, or originating from any such
property.
(m) Tax Matters. (i) All Tax Returns that are required to be filed
by or with respect to United and its Subsidiaries have been duly filed,
(ii) all Taxes shown to be due on the Tax Returns referred to in clause (i)
have been paid in full, (iii) the Tax Returns referred to in clause (i)
have been examined by the Internal Revenue Service or the appropriate
state, local or foreign taxing authority or the period for assessment of
the Taxes in respect of which such Tax Returns were required to be filed
has expired, (iv) all deficiencies asserted or
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assessments made as a result of such examinations have been paid in full,
(v) no issues that have been raised by the relevant taxing authority in
connection with the examination of any of the Tax Returns referred to in
clause (i) are currently pending, and (vi) no waivers of statutes of
limitation have been given by or requested with respect to any Taxes of
United or its Subsidiaries. Neither United nor any of its Subsidiaries has
any liability with respect to income, franchise or similar Taxes that
accrued on or before the end of the most recent period covered by United's
SEC Documents filed prior to the date hereof in excess of the amounts
accrued with respect thereto that are reflected in the financial statements
included in United's SEC Documents filed on or prior to the date hereof.
(n) Books and Records. The books and records of United and its
Subsidiaries have been fully, properly and accurately maintained in all
material respects, and there are no material inaccuracies or discrepancies
of any kind contained or reflected therein, and they fairly present the
substance of events and transactions included therein.
(o) Insurance. United's Disclosure Schedule sets forth all of the
insurance policies, binders, or bonds maintained by United or its
Subsidiaries. United and its Subsidiaries are insured with reputable
insurers against such risks and in such amounts as the management of United
reasonably has determined to be prudent in accordance with industry
practices. All such insurance policies are in full force and effect;
United and its Subsidiaries are not in material default thereunder; and all
claims thereunder have been filed in due and timely fashion.
(p) Accounting Treatment. As of the date hereof, it is aware of no
reason why the Merger will fail to qualify for "pooling of interests"
accounting treatment.
(q) Disclosure. The representations and warranties contained in
this Section 5.04 do not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
and information contained in this Section 5.04 not misleading.
ARTICLE VI
COVENANTS
6.01 Reasonable Best Efforts. Subject to the terms and conditions
of this Agreement, each of Xxxxx and United agrees to use its reasonable best
efforts in good faith to take, or cause to be taken, all actions, and to do, or
cause to be done, all things necessary, proper or desirable, or advisable under
applicable laws, so as to permit consummation of the Merger as promptly as
practicable and otherwise to enable consummation of the transactions
contemplated hereby and shall cooperate fully with the other party hereto to
that end. Without limiting the foregoing,
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United agrees to use its reasonable best efforts prior to the Effective Time to
file the Articles Amendment.
6.02 Stockholder Approvals. United and Xxxxx agree to take, in
accordance with applicable law or NASDAQ rules and its articles of
incorporation and by-laws, all action necessary to convene an appropriate
meeting of its stockholders to consider and vote upon in the case of United,
the approval and adoption of this Agreement and the Articles Amendment and any
other matter required to be approved by United's stockholders for consummation
of the Merger (including any adjournment or postponement, the "United Meeting")
and, in the case of Xxxxx, the approval and adoption of this Agreement and any
other matters required to be approved by Xxxxx'x stockholders for consummation
of the Merger (including any adjournment or postponement, the "Xxxxx Meeting"),
in each case as promptly as practicable after the Registration Statement is
declared effective. The United Board and the Xxxxx Board shall each recommend
such approval, and United and Xxxxx shall take all reasonable, lawful action
to solicit such approval by its stockholders.
6.03 Registration Statement. (a) United agrees to prepare a
registration statement on Form S-4 (the "Registration Statement") to be filed
by United with the SEC in connection with the issuance of United Common Stock
in the Merger (including the joint proxy statement and prospectus and other
proxy solicitation materials of United and Xxxxx constituting a part thereof
(the "Proxy Statement") and all related documents). Xxxxx agrees to cooperate,
and to cause its Subsidiaries to cooperate, with United, its counsel and its
accountants, in preparation of the Registration Statement and the Proxy
Statement; and provided that Xxxxx and its Subsidiaries have cooperated as
required above, United agrees to file the Proxy Statement in preliminary form
with the SEC as promptly as reasonably practicable, and to file the
Registration Statement with the SEC as soon as reasonably practicable after any
SEC comments with respect to the preliminary Proxy Statement are resolved.
Each of Xxxxx and United agrees to use all reasonable efforts to cause the
Registration Statement to be declared effective under the Securities Act as
promptly as reasonably practicable after filing thereof. United also agrees to
use all reasonable efforts to obtain, prior to the effective date of the
Registration Statement, all necessary state securities law or "Blue Sky"
permits and approvals required to carry out the transactions contemplated by
this Agreement. Xxxxx agrees to furnish to United all information concerning
Xxxxx, its Subsidiaries, officers, directors and stockholders as may be
reasonably requested in connection with the foregoing.
(b) Each of Xxxxx and United agrees, as to itself and its
Subsidiaries, that none of the information supplied or to be supplied by it for
inclusion or incorporation by reference in (i) the Registration Statement will,
at the time the Registration Statement and each amendment or supplement
thereto, if any, becomes effective under the Securities Act, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, and
(ii) the Proxy Statement and any amendment or supplement thereto will, at the
date of mailing to stockholders and at the time of the United Meeting or the
Xxxxx Meeting, as the case may be, contain any untrue statement of a
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material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading or any statement
which, in the light of the circumstances under which such statement is made,
will be false or misleading with respect to any material fact, or which will
omit to state any material fact necessary in order to make the statements
therein not false or misleading or necessary to correct any statement in any
earlier statement in the Proxy Statement or any amendment or supplement
thereto. Each of Xxxxx and United further agrees that if it shall become aware
prior to the Effective Date of any information furnished by it that would cause
any of the statements in the Proxy Statement to be false or misleading with
respect to any material fact, or to omit to state any material fact necessary
to make the statements therein not false or misleading, to promptly inform the
other party thereof and to take the necessary steps to correct the Proxy
Statement.
(c) United agrees to advise Xxxxx, promptly after United receives
notice thereof, of the time when the Registration Statement has become
effective or any supplement or amendment has been filed, of the issuance of any
stop order or the suspension of the qualification of United Stock for offering
or sale in any jurisdiction, of the initiation or threat of any proceeding for
any such purpose, or of any request by the SEC for the amendment or supplement
of the Registration Statement or for additional information.
(d) United and Xxxxx, in consultation with the other, shall employ
professional proxy solicitors to assist it in contacting stockholders in
connection with soliciting votes on the Merger.
6.04 Press Releases. Each of Xxxxx and United agrees that it will
not, without the prior approval of the other party, issue any press release or
written statement for general circulation relating to the transactions
contemplated hereby, except as otherwise required by applicable law or
regulation or NASDAQ rules.
6.05 Access; Information. (e) Each of Xxxxx and United agrees that
upon reasonable notice and subject to applicable laws relating to the exchange
of information, it shall afford the other party and the other party's officers,
employees, counsel, accountants and other authorized representatives, such
access during normal business hours throughout the period prior to the
Effective Time to the books, records (including, without limitation, tax
returns and work papers of independent auditors), properties, personnel and to
such other information as any party may reasonably request and, during such
period, it shall furnish promptly to such other party (i) a copy of each
material report, schedule and other document filed by it pursuant to the
requirements of federal or state securities or banking laws, and (ii) all other
information concerning the business, properties and personnel of it as the
other may reasonably request.
(b) Each agrees that it will not, and will cause its representatives
not to, use any information obtained pursuant to this Section 6.05 (as well as
any other information obtained prior to the date hereof in connection with the
entering into of this Agreement) for any purpose unrelated to the consummation
of the transactions contemplated by this Agreement. Subject to the
requirements of law, each party will keep confidential, and will cause its
representatives to
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keep confidential, all information and documents obtained pursuant to this
Section 6.05 (as well as any other information obtained prior to the date
hereof in connection with the entering into of this Agreement) unless such
information (i) was already known to such party, (ii) becomes available to such
party from other sources not known by such party to be bound by a
confidentiality obligation, (iii) is disclosed with the prior written approval
of the party to which such information pertains or (iv) is or becomes readily
ascertainable from published information or trade sources. In the event that
this Agreement is terminated or the transactions contemplated by this Agreement
shall otherwise fail to be consummated, each party shall promptly cause all
copies of documents or extracts thereof containing information and data as to
another party hereto to be returned to the party which furnished the same. No
investigation by either party of the business and affairs of the other shall
affect or be deemed to modify or waive any representation, warranty, covenant
or agreement in this Agreement, or the conditions to either party's obligation
to consummate the transactions contemplated by this Agreement.
(c) During the period from the date of this Agreement to the
Effective Time, each party shall promptly furnish the other with copies of all
monthly and other interim financial statements produced in the ordinary course
of business as the same shall become available.
6.06 Acquisition Proposals. Xxxxx agrees that it shall not, and
shall cause its Subsidiaries and its and its Subsidiaries' officers, directors,
agents, advisors and affiliates not to, solicit or encourage inquiries or
proposals with respect to, or engage in any negotiations concerning, or provide
any confidential information to, or have any discussions with, any person
relating to, any Acquisition Proposal. It shall immediately cease and cause to
be terminated any activities, discussions or negotiations conducted prior to
the date of this Agreement with any parties other than United with respect to
any of the foregoing and shall use its reasonable best efforts to enforce any
confidentiality or similar agreement relating to an Acquisition Proposal.
Xxxxx shall promptly (within 24 hours) advise United following the receipt by
Xxxxx of any Acquisition Proposal and the substance thereof (including the
identity of the person making such Acquisition Proposal), and advise United of
any developments with respect to such Acquisition Proposal immediately upon the
occurrence thereof.
6.07 Affiliate Agreements. (f) Not later than the 15th day prior to
the mailing of the Proxy Statement, (i) United shall deliver to Xxxxx a
schedule of each person that, to the best of its knowledge, is or is reasonably
likely to be, as of the date of the United Meeting, deemed to be an "affiliate"
of United (each, a "United Affiliate") as that term is used in SEC Accounting
Series Releases 130 and 135; and (ii) Xxxxx shall deliver to United a schedule
of each person that, to the best of its knowledge, is or is reasonably likely
to be, as of the date of the Xxxxx Meeting, deemed to be an "affiliate" of
Xxxxx (each, a "Xxxxx Affiliate") as that term is used in Rule 145 under the
Securities Act or SEC Accounting Series Releases 130 and 135.
(b) Each of Xxxxx and United shall use its respective reasonable best
efforts to cause each person who may be deemed to be a Xxxxx Affiliate or a
United Affiliate, as the case may
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be, to execute and deliver to Xxxxx and United on or before the date of mailing
of the Proxy Statement an agreement in the form attached hereto as Exhibit B or
Exhibit C, respectively.
6.08 Takeover Laws. No party hereto shall take any action that would
cause the transactions contemplated by this Agreement or the Stock Option
Agreement to be subject to requirements imposed by any Takeover Law and each of
them shall take all necessary steps within its control to exempt (or ensure the
continued exemption of) the transactions contemplated by this Agreement from,
or if necessary challenge the validity or applicability of, any applicable
Takeover Law, as now or hereafter in effect.
6.09 Certain Policies. Prior to the Effective Date, Xxxxx shall,
consistent with generally accepted accounting principles and on a basis
mutually satisfactory to it and United, modify and change its loan, litigation
and real estate valuation policies and practices (including loan
classifications and levels of reserves) so as to be applied on a basis that is
consistent with that of United; provided, however, that Xxxxx shall not be
obligated to take any such action pursuant to this Section 6.09 unless and
until United acknowledges that all conditions to its obligation to consummate
the Merger have been satisfied and certifies to Xxxxx that United's
representations and warranties, subject to Section 5.02, are true and correct
as of such date and that United is otherwise material in compliance with this
Agreement. Xxxxx'x representations, warranties and covenants contained in this
Agreement shall not be deemed to be untrue or breached in any respect for any
purpose as a consequence of any modifications or changes undertaken solely on
account of this Section 6.09.
6.10 NASDAQ Listing. To the extent so required, United agrees to use
its reasonable best efforts to list, prior to the Effective Date, on the
NASDAQ, subject to official notice of issuance, the shares of United Common
Stock to be issued to the holders of Xxxxx Common Stock in the Merger.
6.11 Regulatory Applications. (g) United and Xxxxx and their
respective Subsidiaries shall cooperate and use their respective reasonable
best efforts to prepare all documentation, to effect all filings and to obtain
all permits, consents, approvals and authorizations of all third parties and
Governmental Authorities necessary to consummate the transactions contemplated
by this Agreement. Each of United and Xxxxx shall have the right to review in
advance, and to the extent practicable each will consult with the other, in
each case subject to applicable laws relating to the exchange of information,
with respect to, all material written information submitted to any third party
or any Governmental Authority in connection with the transactions contemplated
by this Agreement. In exercising the foregoing right, each of the parties
hereto agrees to act reasonably and as promptly as practicable. Each party
hereto agrees that it will consult with the other party hereto with respect to
the obtaining of all material permits, consents, approvals and authorizations
of all third parties and Governmental Authorities necessary or advisable to
consummate the transactions contemplated by this Agreement and each party will
keep the other party apprised of the status of material matters relating to
completion of the transactions contemplated hereby.
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(b) Each party agrees, upon request, to furnish the other party with
all information concerning itself, its Subsidiaries, directors, officers and
stockholders and such other matters as may be reasonably necessary or advisable
in connection with any filing, notice or application made by or on behalf of
such other party or any of its Subsidiaries to any third party or Governmental
Authority.
6.12 Indemnification. (h) Following the Effective Date and for a
period of six years thereafter, United shall indemnify, defend and hold
harmless the present directors, officers and employees of Xxxxx and its
Subsidiaries (each, an "Indemnified Party") against all costs or expenses
(including reasonable attorneys' fees), judgments, fines, losses, claims,
damages or liabilities (collectively, "Costs") incurred in connection with any
claim, action, suit, proceeding or investigation, whether civil, criminal,
administrative or investigative, arising out of actions or omissions occurring
at or prior to the Effective Time (including, without limitation, the
transactions contemplated by this Agreement) to the fullest extent that Xxxxx
is permitted to indemnify (and advance expenses to) its directors and officers
under the laws of the Commonwealth of Virginia, the Xxxxx Certificate and the
Xxxxx By-Laws as in effect on the date hereof; provided that any determination
required to be made with respect to whether an officer's, director's or
employee's conduct complies with the standards set forth under Virginia law,
the Xxxxx Certificate and the Xxxxx By-Laws shall be made by independent
counsel (which shall not be counsel that provides material services to United)
selected by United and reasonably acceptable to such officer or director.
(b) For a period of four years from the Effective Time, United shall
use its reasonable best efforts to provide that portion of director's and
officer's liability insurance that serves to reimburse the present and former
officers and directors of Xxxxx or any of its Subsidiaries (determined as of
the Effective Time) (as opposed to Xxxxx) with respect to claims against such
directors and officers arising from facts or events which occurred before the
Effective Time, which insurance shall contain at least the same coverage and
amounts, and contain terms and conditions no less advantageous, as that
coverage currently provided by Xxxxx; provided, however, that in no event shall
United be required to expend more than 200 percent of the current amount
expended by Xxxxx (the "Insurance Amount") to maintain or procure such
directors and officers insurance coverage; provided, further, that if United is
unable to maintain or obtain the insurance called for by this Section 6.12(b),
United shall use its reasonable best efforts to obtain as much comparable
insurance as is available for the Insurance Amount; provided, further, that
officers and directors of Xxxxx or any Subsidiary may be required to make
application and provide customary representations and warranties to United's
insurance carrier for the purpose of obtaining such insurance.
(c) Any Indemnified Party wishing to claim indemnification under
Section 6.12(a), upon learning of any claim, action, suit, proceeding or
investigation described above, shall promptly notify United thereof; provided
that the failure so to notify shall not affect the obligations of United under
Section 6.12(a) unless and to the extent that United is actually prejudiced as
a result of such failure.
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(d) If United or any of its successors or assigns shall consolidate
with or merge into any other entity and shall not be the continuing or
surviving entity of such consolidation or merger or shall transfer all or
substantially all of its assets to any entity, then and in each case, proper
provision shall be made so that the successors and assigns of United shall
assume the obligations set forth in this Section 6.12.
6.13 Benefit Plans. It is the intention of United that within a
reasonable period of time following the Effective Time (a) it will provide
employees of the Surviving Corporation with employee benefit plans
substantially similar in the aggregate to those provided to similarly situated
employees of United, (b) any such employees will receive credit for years of
service with Xxxxx or any of its Subsidiaries prior to the Effective Time for
the purpose of eligibility and vesting and (c) United shall cause any and all
pre-existing condition limitations (to the extent such limitations did not
apply to a pre-existing condition under the Compensation and Benefit Plans) and
eligibility waiting periods under group health plans to be waived with respect
to such participants and their eligible dependents.
6.14 Notification of Certain Matters. Each of Xxxxx and United shall
give prompt notice to the other of any fact, event or circumstance known to it
that (i) is reasonably likely, individually or taken together with all other
facts, events and circumstances known to it, to result in any Material Adverse
Effect with respect to it or (ii) would cause or constitute a material breach
of any of its representations, warranties, covenants or agreements contained
herein.
6.15 Directors and Officers. (a) United agrees to cause five members
of the Xxxxx Board on the date hereof (selected by United after consultation
with Xxxxx), including Xxxxxxx X. Xxxxxxxxx, who are still members of the Xxxxx
Board immediately prior to the Effective Time and willing and eligible to serve
to be elected or appointed as a director of United at the Effective Time and
shall cause Xx. Xxxxxxxxx to also be elected or appointed as a member of the
Executive Committee of the United Board.
(b) United agrees to cause Xxxxxxx X. Xxxxxxxxx, the Chief Executive
Officer and President of Xxxxx to be elected or appointed as the President of
United at the Effective Time.
6.16 Dividend Coordination. After November 1, 1997, the Board of
Directors of Xxxxx shall cause its regular quarterly dividend record dates and
payment dates for Xxxxx Common Stock to be the same as United's regular
quarterly dividend record dates and payment dates for United Common Stock
(e.g., Xxxxx shall move its next dividend record and payment dates from October
and October to September and October, respectively), and Xxxxx shall not
thereafter change its regular dividend payment dates and record dates.
6.17 Bank Merger. Each of Xxxxx and United shall use its reasonable
best efforts to cause and effect the merger of United's state-chartered
Virginia bank into Xxxxx'x state-chartered Virginia bank as promptly as
reasonably practicable following the Effective Date.
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6.18 Xxxxx Fee. If (a) the United Board shall have failed to make
its recommendation referred to in Section 6.02, withdrawn such recommendation
or modified or changed such recommendation in a manner adverse in any respect
to the interests of Xxxxx, (b) United shall be in material and willful breach
of any of its covenants contained in this Agreement such that Xxxxx shall be
entitled to terminate the Merger Agreement pursuant to Section 8.01(b) or (c)
the stockholders of United do not approve this Agreement at the United Meeting,
in each case after there has been proposed by a third party a United
Acquisition Transaction (the "Proposal"), then, in any such event, upon the
actual consummation of a United Acquisition Transaction with such third party
within 18 months after the Proposal, United shall pay Xxxxx a fee of
$9,000,000.
Notwithstanding anything to the contrary contained herein, the fee
provided for in this Section 6.18 shall not be payable if United has
terminated, or has or had the right to terminate, the Merger Agreement pursuant
to Section 8.01(b), 8.01(d)(ii) as a result of the Xxxxx stockholders not
approving this Agreement or Section 8.01(e).
For purposes of the foregoing, "United Acquisition Transaction" shall
have the same meaning as the term "Acquisition Transaction" in the Stock Option
Agreement except that the term "Issuer" therein shall refer to and mean United
and the percentage referred to in clause (z) of the second sentence shall be
25%.
ARTICLE VII
CONDITIONS TO CONSUMMATION OF THE MERGER
7.01 Conditions to Each Party's Obligation to Effect the Merger. The
respective obligation of each of United and Xxxxx to consummate the Merger is
subject to the fulfillment or written waiver by United and Xxxxx prior to the
Effective Time of each of the following conditions:
(a) Stockholder Approvals. This Agreement and the Merger shall have
been duly adopted by the requisite vote of the stockholders of Xxxxx and
duly adopted by the requisite vote of the stockholders of United and the
Articles Amendment and any required approvals in connection with the Xxxxx
Stock Options shall have been duly adopted by the requisite vote of the
stockholders of United.
(b) Regulatory Approvals. All regulatory approvals required to
consummate the transactions contemplated hereby, shall have been obtained
and shall remain in full force and effect and all statutory waiting periods
in respect thereof shall have expired and no such approvals shall contain
(i) any conditions, restrictions or requirements which the United Board
reasonably determines would either before or after the Effective Time have
a Material Adverse Effect on the Surviving Corporation and its Subsidiaries
taken as a whole or (ii) any conditions, restrictions or requirements that
are not customary and usual for approvals of
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such type and which the United Board reasonably determines would either
before or after the Effective Date be unduly burdensome.
(c) No Injunction. No Governmental Authority of competent
jurisdiction shall have enacted, issued, promulgated, enforced or entered
any statute, rule, regulation, judgment, decree, injunction or other order
(whether temporary, preliminary or permanent) which is in effect and
prohibits consummation of the transactions contemplated by this Agreement.
(d) Registration Statement. The Registration Statement shall have
become effective under the Securities Act and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been initiated or threatened by the
SEC.
(e) Blue Sky Approvals. All permits and other authorizations under
state securities laws necessary to consummate the transactions contemplated
hereby and to issue the shares of United Common Stock to be issued in the
Merger shall have been received and be in full force and effect.
(f) Listing. To the extent required, the shares of United Common
Stock to be issued in the Merger shall have been approved for listing on
the NASDAQ, subject to official notice of issuance.
(g) Articles Amendment. The Articles Amendment shall have been
filed and effective under the WVCA.
(h) Dissenters. Holders of not more than 10% of the United Common
Stock shall have elected to exercise dissenters or appraisal rights under
the WVCA.
7.02 Conditions to Obligation of Xxxxx. The obligation of Xxxxx to
consummate the Merger is also subject to the fulfillment or written waiver by
Xxxxx prior to the Effective Time of each of the following conditions:
(a) Representations and Warranties. The representations and
warranties of United set forth in this Agreement shall be true and correct,
subject to Section 5.02, as of the date of this Agreement and as of the
Effective Date as though made on and as of the Effective Date (except that
representations and warranties that by their terms speak as of the date of
this Agreement or some other date shall be true and correct as of such
date), and Xxxxx shall have received a certificate, dated the Effective
Date, signed on behalf of United by the Chief Executive Officer and the
Chief Financial Officer of United to such effect.
(b) Performance of Obligations of United. United shall have
performed in all material respects all obligations required to be performed
by them under this Agreement at or prior to the Effective Time, and Xxxxx
shall have received a certificate, dated the Effective Date,
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signed on behalf of United by the Chief Executive Officer and the Chief
Financial Officer of United to such effect.
(c) Opinion of Xxxxx'x Counsel. Xxxxx shall have received an
opinion of Silver, Xxxxxxxx & Xxxx, L.L.P. counsel to Xxxxx, dated the
Effective Date, to the effect that, on the basis of facts, representations
and assumptions set forth in such opinion, (i) the Merger constitutes a
"reorganization" within the meaning of Section 368 of the Code and (ii) no
gain or loss will be recognized by stockholders of Xxxxx who receive shares
of United Common Stock in exchange for shares of Xxxxx Common Stock, except
that gain or loss may be recognized as to cash received in lieu of
fractional share interests. In rendering its opinion, Silver, Xxxxxxxx &
Xxxx, L.L.P. may require and rely upon representations contained in
letters from Xxxxx and others.
(d) Accounting Treatment. Xxxxx shall have received from Ernst &
Young LLP, Xxxxx'x independent auditors, letters, dated the date of or
shortly prior to each of the mailing date of the Proxy Statement and the
Effective Date, stating its opinion that the Merger shall qualify for
pooling-of-interests accounting treatment.
7.03 Conditions to Obligation of United. The obligation of United to
consummate the Merger is also subject to the fulfillment or written waiver by
United prior to the Effective Time of each of the following conditions:
(a) Representations and Warranties. The representations and
warranties of Xxxxx set forth in this Agreement shall be true and correct,
subject to Section 5.02, as of the date of this Agreement and as of the
Effective Date as though made on and as of the Effective Date (except that
representations and warranties that by their terms speak as of the date of
this Agreement or some other date shall be true and correct as of such
date) and United shall have received a certificate, dated the Effective
Date, signed on behalf of Xxxxx by the Chief Executive Officer and the
Chief Financial Officer of Xxxxx to such effect.
(b) Performance of Obligations of Xxxxx. Xxxxx shall have performed
in all material respects all obligations required to be performed by it
under this Agreement at or prior to the Effective Time, and United shall
have received a certificate, dated the Effective Date, signed on behalf of
Xxxxx by the Chief Executive Officer and the Chief Financial Officer of
Xxxxx to such effect.
(c) Opinion of United's Counsel. United shall have received an
opinion of Xxxxxxxx & Xxxxxxxx, special counsel to United, dated the
Effective Date, to the effect that, on the basis of facts, representations
and assumptions set forth in such opinion, the Merger constitutes a
reorganization under Section 368 of the Code. In rendering its opinion,
Xxxxxxxx & Xxxxxxxx may require and rely upon representations contained in
letters from United and others.
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(d) Accounting Treatment. United shall have received from Ernst &
Young LLP, United's independent auditors, letters, dated the date of or
shortly prior to each of the mailing date of the Proxy Statement and the
Effective Date, stating its opinion that the Merger shall qualify for
pooling-of-interests accounting treatment.
ARTICLE VIII
TERMINATION
8.01 Termination. This Agreement may be terminated, and the
Acquisition may be abandoned:
(a) Mutual Consent. At any time prior to the Effective Time, by the
mutual consent of United and Xxxxx, if the Board of Directors of each so
determines by vote of a majority of the members of its entire Board.
(b) Breach. At any time prior to the Effective Time, by United or
Xxxxx, if its Board of Directors so determines by vote of a majority of the
members of its entire Board, in the event of either: (i) a breach by the
other party of any representation or warranty contained herein (subject to
the standard set forth in Section 5.02), which breach cannot be or has not
been cured within 30 days after the giving of written notice to the
breaching party of such breach; or (ii) a breach by the other party of any
of the covenants or agreements contained herein, which breach cannot be or
has not been cured within 30 days after the giving of written notice to the
breaching party of such breach, provided that such breach (whether under
(i) or (ii)) would be reasonably likely, individually or in the aggregate
with other breaches, to result in a Material Adverse Effect.
(c) Delay. At any time prior to the Effective Time, by United or
Xxxxx, if its Board of Directors so determines by vote of a majority of the
members of its entire Board, in the event that the Acquisition is not
consummated by July 15, 1998, except to the extent that the failure of the
Acquisition then to be consummated arises out of or results from the
knowing action or inaction of the party seeking to terminate pursuant to
this Section 8.01(c).
(d) No Approval. By Xxxxx or United, if its Board of Directors so
determines by a vote of a majority of the members of its entire Board, in
the event (i) the approval of any Governmental Authority required for
consummation of the Merger and the other transactions contemplated by this
Agreement shall have been denied by final nonappealable action of such
Governmental Authority or (ii) any stockholder approval required by Section
7.01(a) herein is not obtained at the Xxxxx Meeting or the United Meeting.
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(e) Failure to Recommend, Etc. At any time prior to the Xxxxx
Meeting, by United if the Xxxxx Board shall have failed to make its
recommendation referred to in Section 6.02, withdrawn such recommendation
or modified or changed such recommendation in a manner adverse in any
respect to the interests of United; or at any time prior to the United
Meeting, by Xxxxx, if the United Board shall have failed to make its
recommendation referred to in Section 6.02, withdrawn such recommendation
or modified or changed such recommendation in a manner adverse in any
respect to the interests of Xxxxx.
(f) Failure to Execute and Deliver Stock Option Agreement. At any
time prior to September 13, 1997, by United if Xxxxx shall not have
executed and delivered the Stock Option Agreement to United.
8.02 Effect of Termination and Abandonment. In the event of
termination of this Agreement and the abandonment of the Merger pursuant to
this Article VIII, no party to this Agreement shall have any liability or
further obligation to any other party hereunder except (i) as set forth in
Section 9.01 and (ii) that termination will not relieve a breaching party from
liability for any willful breach of this Agreement giving rise to such
termination.
ARTICLE IX
MISCELLANEOUS
9.01 Survival. No representations, warranties, agreements and
covenants contained in this Agreement shall survive the Effective Time (other
than Section 6.12, 6.13, 6.15, 6.17 and this Article IX which shall survive the
Effective Time) or the termination of this Agreement if this Agreement is
terminated prior to the Effective Time (other than Sections 6.03(b), 6.04,
6.05(b), 6.18, 8.02, and this Article IX which shall survive such termination).
9.02 Waiver; Amendment. Prior to the Effective Time, any provision
of this Agreement may be (i) waived by the party benefitted by the provision,
or (ii) amended or modified at any time, by an agreement in writing between the
parties hereto executed in the same manner as this Agreement, except that (A)
after the Xxxxx Meeting, this Agreement may not be amended if it would violate
the VSCA and (B) after the United Meeting, this Agreement may not be amended if
it would violate the WVCA.
9.03 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to constitute an original.
9.04 Governing Law. This Agreement shall be governed by, and
interpreted in accordance with, the laws of the State of West Virginia
applicable to contracts made and to be performed entirely within such State
(except to the extent that mandatory provisions of Federal law or of the VSCA
are applicable).
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9.05 Expenses. Each party hereto will bear all expenses incurred by
it in connection with this Agreement and the transactions contemplated hereby,
except that printing expenses and SEC fees shall be shared equally between
Xxxxx and United.
9.06 Notices. All notices, requests and other communications
hereunder to a party shall be in writing and shall be deemed given if
personally delivered, telecopied (with confirmation) or mailed by registered or
certified mail (return receipt requested) to such party at its address set
forth below or such other address as such party may specify by notice to the
parties hereto.
If to Mason, to:
Xxxxxx Xxxxx Bankshares, Inc.
0000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxxx,
Chief Executive Officer
Xxxxx Xxxxxxxx,
Chief Financial Officer
With a copy to:
Silver, Xxxxxxxx & Taff, L.L.P.
0000 Xxx Xxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000-0000
Facsimile: (000) 000-0000
Attn: Xxxxx X. Xxxx, P.C.
Xxxxxxxxxxx X. Xxxxx, P.C.
If to United, to:
United Bankshares, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx,
Chairman of the Board and Chief Executive Officer
Xxxxxx Xxxxxx
Chief Financial Officer
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With a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
Attn: H. Xxxxxx Xxxxx, Esq.
Xxxx X. Xxxxxxx, Esq.
9.07 Entire Understanding; No Third Party Beneficiaries. This
Agreement and any Stock Option Agreement entered into represent the entire
understanding of the parties hereto with reference to the transactions
contemplated hereby and thereby and this Agreement supersedes any and all other
oral or written agreements heretofore made (other than any such Stock Option
Agreement). Except for Section 6.12, nothing in this Agreement expressed or
implied, is intended to confer upon any person, other than the parties hereto
or their respective successors, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
9.08 Interpretation; Effect. When a reference is made in this
Agreement to Sections, Exhibits or Schedules, such reference shall be to a
Section of, or Exhibit or Schedule to, this Agreement unless otherwise
indicated. The table of contents and headings contained in this Agreement are
for reference purposes only and are not part of this Agreement. Whenever the
words "include," "includes" or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation." No provision
of this Agreement shall be construed to require Xxxxx, United or any of their
respective Subsidiaries, affiliates or directors to take any action which would
violate applicable law (whether statutory or common law), rule or regulation.
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* * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in counterparts by their duly authorized officers, all as of the day
and year first above written.
XXXXXX XXXXX BANKSHARES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: President and Chief Executive
Officer
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Secretary
UNITED BANKSHARES, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman of the Board and
Chief Executive Officer
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