AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated as of November 19, 2001
("Agreement"), is among United National Bancorp, a New Jersey corporation and
registered bank holding company ("United"), UnitedTrust Bank, a New
Jersey-chartered commercial bank ("UTB"), Vista Bancorp, Inc., a New Jersey
corporation and registered bank holding company ("Vista") and Vista Bank, N.A.,
a national banking association (the "Bank").
RECITALS
United desires to acquire Vista and Vista's Board of Directors has
determined, based upon the terms and conditions hereinafter set forth, that the
acquisition is in the best interests of Vista and its stockholders. The
acquisition will be accomplished by merging Vista into United with United as the
surviving corporation and, at the same time, merging the Bank into UTB with UTB
as the surviving bank, and Vista stockholders receiving the consideration
hereinafter set forth. The Boards of Directors of Vista, United, the Bank and
UTB have duly adopted and approved this Agreement and the Boards of Directors of
United and Vista have each directed that it be submitted to their respective
stockholders for approval.
As a condition precedent to entering into this Agreement, United has
required that Vista grant it an option to purchase authorized but unissued
shares of Vista common stock and, as a consequence, United and Vista have
entered into a Stock Option Agreement, dated the date hereof (the "United Stock
Option").
NOW, THEREFORE, intending to be legally bound, the parties hereto agree
as follows:
ARTICLE I
THE MERGER
1.1. The Merger. Subject to the terms and conditions of this
Agreement, at the Effective Time (as hereafter defined), Vista shall be merged
with and into United (the "Merger") in accordance with the New Jersey Business
Corporation Act ("NJBCA") and United shall be the surviving corporation (the
"Surviving Corporation"). Immediately following the Effective Time, the Bank
shall be merged with and into UTB as provided in Section 1.7 hereof.
1.2. Effect of the Merger. At the Effective Time (as hereafter
defined), the Surviving Corporation shall be considered the same business and
corporate entity as each of Vista and United and thereafter all the property,
rights, powers and franchises of each of Vista and United shall vest in the
Surviving Corporation and the Surviving Corporation shall be subject to and be
deemed to have assumed all of the debts, liabilities, obligations and duties of
each of Vista and United and shall have succeeded to all of each of their
relationships, fiduciary or otherwise, as fully and to the same extent as if
such property, rights, privileges, powers, franchises, debts, obligations,
duties and relationships had been originally acquired, incurred or entered into
by the Surviving Corporation.
1.3. Certificate of Incorporation. The certificate of incorporation
of United as it exists immediately prior to the Effective Time shall not be
amended by the Merger, but shall continue as the certificate of incorporation of
the Surviving Corporation until otherwise amended as provided by law.
1.4. Bylaws. The bylaws of United as they exist immediately prior to
the Effective Date shall continue as the by-laws of the Surviving Corporation
until otherwise amended as provided by law.
1.5. Directors and Officers. The directors and officers of United as
of the Effective Time shall continue as the directors and officers of the
Surviving Corporation, with the additions provided for in Section 5.15 hereof.
1.6. Closing Date, Closing and Effective Time; Determination Date.
Unless a different date, time and/or place are agreed to by the parties hereto,
the closing of the Merger (the "Closing") shall take place at 10:00 a.m., at the
office of Bourne, Xxxx & Xxxxxx, Summit, New Jersey, on a date (the "Closing
Date") which shall be the fifth business day following the first date (the
"Determination Date") on which all necessary regulatory and governmental
approvals and consents have been received, all statutory waiting periods in
respect thereof have expired, and all other conditions to the consummation of
the Merger specified in Article VI hereof (other than the delivery of
certificates, opinions and other instruments and documents to be delivered at
the Closing) have been satisfied or waived, or at such other place, time or date
as United and Vista may mutually agree upon. The Merger shall become effective
(and be consummated) upon the effective time (the "Effective Time") specified by
United and Vista in the certificate of merger (the "Certificate of Merger"),
which shall be prepared by United, shall be in form and substance satisfactory
to United and Vista, and shall be filed with the Secretary of State of the State
of New Jersey. The parties currently anticipate that the Certificate of Merger
shall specify as the effective time the close of business on the Closing Date.
If no effective time is specified in the Certificate of Merger, the Merger shall
become effective (and be consummated) upon the filing of the Certificate of
Merger.
1.7. The Bank Merger. Immediately following the Effective Time, the
Bank shall be merged with and into UTB (the "Bank Merger") in accordance with
the provisions of the New Jersey Banking Act of 1948, as amended and the
National Bank Merger Act, as amended, and UTB shall be the surviving bank (the
"Surviving Bank"). Upon the consummation of the Bank Merger, the separate
existence of the Bank shall cease and the Surviving Bank shall be considered the
same business and corporate entity as each of the Bank and UTB and all of the
property, rights, powers and franchises of each of the Bank and UTB shall vest
in the Surviving Bank and the Surviving Bank shall be deemed to have assumed all
of the debts, liabilities, obligations and duties of each of the Bank and UTB
and shall have succeeded to all of each of their relationships, fiduciary or
otherwise, as fully and to the same extent as if such property, rights,
privileges, powers, franchises, debts, obligations, duties and relationships had
been originally acquired, incurred or entered into by the Surviving Bank. Upon
the consummation of the Bank Merger, the certificate of incorporation and bylaws
of UTB shall become the certificate of incorporation and bylaws of the Surviving
Bank, the officers and employees of UTB and the officers and employees of the
Bank shall be the officers and employees of the Surviving Bank with such
additions as the Board of Directors of UTB shall determine, and the directors of
UTB shall be the directors of the Surviving Bank with the additions from the
directors of Vista as specified herein. In connection with the execution of this
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Agreement, the Bank and UTB shall execute and deliver a separate merger
agreement (the "Bank Merger Agreement") in substantially the form of Exhibit A,
annexed hereto, for delivery to the appropriate regulatory authorities for
approval of the Bank Merger.
ARTICLE II
CONVERSION OF VISTA COMMON STOCK AND OPTIONS
Each share of common stock, $.50 par value, of Vista ("Vista Common
Stock"), issued and outstanding immediately prior to the Effective Time, and
each option to purchase shares of Vista Common Stock validly issued pursuant to
the 1998 Stock Compensation Plan of Vista (the "Vista Option Plan") and
outstanding immediately prior to the Effective Time and listed on Section 3.2 of
the Vista Disclosure Schedule (each a "Vista Option") shall, by virtue of the
Merger and without any action on the part of the holder thereof, be converted or
cancelled at the Effective Time in accordance with this Article II.
2.1. Conversion of Vista Capital Stock. At the Effective Time,
without any action on the part of United, Vista or the holder of any of the
shares of Vista Common Stock, the Merger shall be effected in accordance with
the following terms:
(a) All shares of Vista Common Stock owned directly by Vista
(including treasury shares) or United (other than shares in trust accounts,
managed accounts and the like or shares held in satisfaction of a debt
previously contracted) shall be cancelled and retired and shall not represent
capital stock of the Surviving Corporation and shall not be exchanged for shares
of common stock, par value $1.25 per share of United ("United Common Stock"),
cash or other consideration.
(b) Each outstanding share of Vista Common Stock is to be
converted into the right to receive shares of United Common Stock and shall,
subject to Section 2.1(e), be converted into and become the right to receive a
number of shares of United Common Stock (together with the requisite number of
rights (the "United Rights") issued pursuant to the United Rights Agreement (as
defined in Section 4.2)) equal to the Cash Election Price divided by the Average
Pre-Closing Price of United Common Stock (the "Exchange Ratio"). For purposes of
this Agreement, "Average Pre-Closing Price of United Common Stock" shall mean
the average of the closing prices of shares of United Common Stock as reported
on the NASDAQ/NMS for the ten consecutive full trading days ending on (and
including) the Determination Date. The Average Pre-Closing Price of United
Common Stock shall be calculated to the nearest one-hundredth of one percent and
the Exchange Ratio shall be calculated to the nearest ten thousandth.
(c) Each outstanding share of Vista Common Stock which under
the terms of Section 2.2 is to be converted into the right to receive cash shall
be converted into the right to receive the sum of (x) .75 times 1.17 times the
Average Pre-Closing Price of United Common Stock and (y) .25 times $28.36 (the
"Cash Election Price").
(d) The Exchange Ratio set forth above shall be subject to
appropriate adjustments in the event that, subsequent to the date of this
Agreement but prior to the Effective Time, the outstanding United Common Stock
shall have been increased, decreased, changed into or exchanged for a different
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number or kind of shares or securities through reorganization, recapitalization,
reclassification, stock dividend, stock split, reverse stock split, or other
like changes in United's capitalization (a "Capital Change"). In addition, if
United enters into an agreement pursuant to which shares of United Common Stock
would be converted, prior to the Effective Time, into shares or other securities
or obligations of another corporation, proper provision shall be made in such
agreement so that each Vista stockholder shall be entitled to receive at the
Effective Time such number of shares or other securities or amount of
obligations of such other corporation as such stockholder would be entitled to
receive if the Effective Time had occurred immediately prior to the consummation
of such conversion.
(e) No fractional shares of United Common Stock shall be
issued pursuant to the Merger, and, in lieu thereof, each holder of Vista Common
Stock who would otherwise be entitled to a fractional interest will receive an
amount in cash determined by multiplying such fractional interest by the Average
Pre-Closing Price of United Common Stock.
2.2. Election Procedures. An election form as United and Vista shall
mutually agree ("Election Form") will be sent no later than 15 Business Days
prior to the expected Effective Time (provided that it need not be sent until
the requisite regulatory approvals as set forth in Section 5.6 have been
obtained) to each holder of record of Vista Common Stock (each a "Record
Holder") permitting such Record Holder (or in the case of nominee record
holders, the beneficial owner through proper instructions and documentation) (i)
to elect to receive United Common Stock with respect to each share of such
holder's Vista Common Stock as provided herein (the "Vista Stock Election
Shares") or (ii) to elect to receive cash with respect to each share of such
holder's Vista Common Stock as provided herein (the "Vista Cash Election
Shares"). Any shares of Vista Common Stock with respect to which the holder
thereof shall not, as of the Election Deadline, have made such an election by
submission to an exchange agent that United shall designate with Vista's
reasonable consent (the "Exchange Agent"), on an effective, properly completed
Election Form shall be deemed to be Vista Stock Election Shares.
The term "Election Deadline", as used below shall mean 5:00 p.m.,
Eastern time, on the 20th Business Day following but not including the date of
mailing of the Election Form or such other date as Vista and United shall
mutually agree upon.
Any election to receive United Common Stock or cash shall have been
properly made only if the Exchange Agent shall have actually received a properly
completed Election Form by the Election Deadline. Any Election Form may be
revoked or changed by the person submitting such Election Form to the Exchange
Agent by written notice to the Exchange Agent only if such notice is actually
received by the Exchange Agent at or prior to the Election Deadline. The
certificate or certificates representing Vista Common Stock relating to any
revoked Election Form shall be promptly returned without charge to the person
submitting the Election Form to the Exchange Agent. The Exchange Agent shall
have discretion to determine when any election, modification or revocation is
received and whether any such election, modification or revocation has been
properly made.
(a) Within five Business Days after the Election Deadline, the
Exchange Agent shall calculate the allocation among holders of Vista Common
Stock of rights to receive United Common Stock or cash in the Merger in
accordance with the Election Forms as follows:
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(i) If the number of Vista Cash Election Shares is
greater than the quotient of (x) $37,615,527 divided by (y) the Cash Election
Price (the "Cash Conversion Shares"), then:
(1) all Vista Stock Election Shares will be
converted into the right to receive United
Common Stock, and
(2) each Vista Cash Election Shares will be
converted into the right to receive United
Common Stock and cash in the following manner:
(A) a proration factor (the "Cash Proration
Factor") shall be determined by dividing
(x) $37,615,527, by (y) the product of
the number of Vista Cash Election Shares
multiplied by the Cash Election Price;
(B) the number of Vista Cash Election Shares
held by each holder of shares of Vista
Common Stock that will be converted into
the right to receive cash pursuant to the
terms of Section 2.1(c) shall be
determined by multiplying the Cash
Proration Factor by the number of Vista
Cash Election Shares held by such holder;
and
(C) all Vista Cash Election Shares other than
those shares converted into the right to
receive cash in accordance with the
preceding subparagraph (B) shall be
converted into the right to receive
United Common Stock in accordance with
the terms of Section 2.1(b); or
(ii) If the number of Vista Cash Election Shares is less
than the Cash Conversion Shares, then:
(1) all Vista Cash Election Shares will be
converted into the right to receive cash; and
(2) each Vista Stock Election Share will be
converted into the right to receive United
Common Stock and cash in the following manner:
(A) a proration factor (the "Stock Proration
Factor") shall be determined by dividing
the Stock Conversion Shares (as defined
below) by the number of Vista Stock
Election Shares. The "Stock Conversion
Shares" shall mean the difference between
(x) the total number of shares of Vista
Common Stock outstanding immediately
prior to the Effective Time minus (y) the
Cash Conversion Shares;
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(B) the number of Vista Stock Election Shares
held by each holder of shares of Vista
Common Stock that will be converted into
the right to receive shares of United
Common Stock pursuant to the terms of
Section 2.1(b) shall be determined by
multiplying the Stock Proration Factor by
the number of Vista Stock Election Shares
held by such holder; and
(C) all Vista Stock Election Shares other
than those shares converted into the
right to receive United Common Stock in
accordance with the preceding
subparagraph (B) shall be converted into
the right to receive cash in accordance
with the terms of Section 2.1(c); or
(iii) If the number of Vista Stock Election Shares is
equal to the number of Stock Conversion Shares and the Number of Vista Cash
Election Shares is equal to the number of Cash Conversion Shares, then
subparagraphs (i) and (ii) above shall not apply and all United Common Stock and
all Vista Cash Election Shares will be converted into the right to receive cash.
(b) Upon surrender of certificates which, immediately prior to
the Effective Time, represented outstanding shares of Vista Common Stock (the
"Certificates") for exchange and cancellation to the Exchange Agent, together
with a mutually agreed upon letter of transmittal, duly executed, (which shall
specify that delivery shall be effected, and risk of loss and title to the
Certificates shall pass, only upon delivery of the Certificates to the Exchange
Agent) the Record Holder shall be entitled to promptly receive in exchange for
such Certificates, the United Common Stock, any cash payment in lieu of United
Common Stock elected by such Record Holder, and cash in lieu of a fractional
share, as provided in Section 2.1 hereof and the Certificates so surrendered
shall be canceled. The Exchange Agent shall not be obligated to deliver or cause
to be delivered to any Record Holder, the United Common Stock or any cash
payment for a fractional share or in lieu of United Common Stock elected by such
Record Holder pursuant to Section 2.1, to which such Record Holder would
otherwise be entitled until such Record Holder surrenders the Certificates for
exchange or, in default thereof, an appropriate Affidavit of Loss and Indemnity
Agreement and/or a bond as may be reasonably required in each case by United.
Notwithstanding the time of surrender of the Certificates, Record Holders shall
be deemed stockholders of United for all purposes from the Effective Time,
except that United shall withhold the payment of dividends from any Record
Holder until such Record Holder effects the exchange of Certificates for the
United Common Stock and any cash payment in lieu of United Common Stock elected
by such Record Holder pursuant to Section 2.1. Such Record Holder shall receive
such withheld dividends, without interest, upon effecting the share exchange.
(c) After the Effective Time, there shall be no transfers on
the stock transfer books of Vista of the shares of Vista Common Stock which were
outstanding immediately prior to the Effective Time and, if any Certificates
representing such shares are presented for transfer, they shall be canceled and
exchanged for the consideration as provided in Section 2.1 hereof.
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(d) If payment of the United Common Stock or any cash payment
for a fractional share or in lieu of United Common Stock elected by a Record
Holder pursuant to Section 2.1 hereof is to be made in a name other than that in
which the Certificates surrendered in exchange therefor is registered, it shall
be a condition of such payment that the Certificates so surrendered shall be
properly endorsed (or accompanied by an appropriate instrument of transfer) and
otherwise in proper form for transfer, and that the person requesting such
payment shall pay to the Exchange Agent in advance any transfer or other taxes
required by reason of the payment to a person other than that of the registered
holder of the Certificates surrendered, or required for any other reason, or
shall establish to the satisfaction of the Exchange Agent that such tax has been
paid or is not payable.
(e) With respect to each outstanding Vista Option the Exchange
Agent shall, after the Effective Time, distribute to the Optionee an amendment
to the option grant evidencing the conversion of the grant to an option to
purchase United Common Stock in accordance with Section 2.6 hereof.
2.3. No Dissenters' Rights. Consistent with the provisions of the
NJBCA, no stockholder of Vista shall have appraisal rights with respect to the
Merger.
2.4. Cancelled Shares. Each share of Vista Common Stock (i) which is
held by Vista as treasury stock or (ii) which is held by Bank or any other
direct or indirect subsidiary of Bank (except as trustee or in a fiduciary
capacity) or (iii) which is held by United, shall be canceled and retired at the
Effective Time.
2.5. United Shares. The shares of United Common Stock outstanding at
the Effective Time shall not be affected by the Merger, but along with the
additional shares of United Common Stock to be issued as provided in Section 2.1
hereof, shall become the outstanding common stock of the Surviving Corporation.
2.6 Vista Stock Options. At the Effective Time, each outstanding
Vista Option held by any person (an "Optionee") under the Vista Option Plan
shall be converted into a option to purchase United Common Stock (a "Stock
Option"), wherein (x) the right to purchase shares of Vista Common Stock
pursuant to the Vista Option shall be converted into the right to purchase that
same number of shares of United Common Stock multiplied by the Exchange Ratio,
(y) the option exercise price per share of United Common Stock shall be the
previous option exercise price per share of Vista Common Stock divided by the
Exchange Ratio and (z) in all other material respects the option shall be
subject to the same terms and conditions as governed the Vista Option on which
it was based, including the length of time within which the option may be
exercised and for any options which are "incentive stock options" (as defined in
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code")), the
adjustments shall be and are intended to be effected in a manner which is
consistent with Section 424(a) of the Code. Shares of United Common Stock
issuable upon exercise of Stock Options shall be covered by an effective
registration statement on Form S-8, and United shall file a registration
statement on Form S-8 covering such shares as soon as practicable after the
Effective Time, but in no event later than 45 days after the Effective Time.
United may elect, by notice served on Vista at least 2 business days
prior to the Closing Date, to exchange cash in lieu of Stock Options for up to
25% of the total number of Vista Options (pro rated among the holders of such
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Vista Options) outstanding at the Effective Time. The cash payment per Vista
Option in lieu of converting such Vista Option into a Stock Option shall be
calculated as the Exchange Ratio multiplied by $24.24, less the exercise price
of the Vista Option.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF VISTA
References herein to "Vista Disclosure Schedule" shall mean all of the
disclosure schedules required by this Article III, dated as of the date hereof
and referenced to the specific sections and subsections of Article III of this
Agreement, which have been delivered on the date hereof by Vista to United.
Vista hereby represents and warrants to United as follows:
3.1. Corporate Organization.
(a) Vista is a corporation duly organized, validly existing
and in good standing under the laws of the State of New Jersey. Vista has the
corporate power and authority to own or lease all of its properties and assets
and to carry on its business as it is now being conducted and is duly licensed
or qualified to do business in each jurisdiction in which the nature of the
business conducted by it or the character or location of the properties and
assets owned or leased by it makes such licensing or qualification necessary,
except where the failure to be so licensed or qualified would not have a
material adverse effect on the business, operations, assets or financial
condition of Vista on a consolidated basis. Vista is registered as a bank
holding company under the Bank Holding Company Act of 1956, as amended ("BHCA").
(b) Each of the Subsidiaries of Vista are listed in the Vista
Disclosure Schedule. The term "Subsidiary", when used in this Agreement with
respect to Vista, means any corporation, joint venture, association,
partnership, trust or other entity in which Vista has, directly or indirectly at
least a 50% interest or acts as a general partner. Each Subsidiary of Vista is
duly organized, validly existing and in good standing under the laws of its
state of incorporation. The Bank is a national banking association whose
deposits are insured to the fullest extent permitted by law by the Bank
Insurance Fund of the Federal Deposit Insurance Corporation ("FDIC") (the "BIF")
and the Savings Association Insurance Fund of the FDIC (the "SAIF"). Each
Subsidiary of Vista has the corporate power and authority to own or lease all of
its properties and assets and to carry on its business as it is now being
conducted and is duly licensed or qualified to do business in each jurisdiction
in which the nature of the business conducted by it or the character or location
of the properties and assets owned or leased by it makes such licensing or
qualification necessary, except where the failure to be so licensed or qualified
would not have a material adverse effect on the business, operations, assets or
financial condition of Vista and its Subsidiaries on a consolidated basis. The
Vista Disclosure Schedule sets forth true and complete copies of the
Certificates of Incorporation or Charter, as the case may be, and Bylaws of
Vista and each Vista Subsidiary as in effect on the date hereof. Except as set
forth in the Vista Disclosure Schedule, Vista does not own or control, directly
or indirectly, any equity interest in any corporation, company, association,
partnership, joint venture or other entity and owns no real estate, except (i)
residential real estate acquired through foreclosure or deed in lieu of
foreclosure in each individual instance with a fair market value less than
$100,000 and (ii) real estate used for its banking premises.
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3.2. Capitalization.
The authorized capital stock of Vista consists of 10,000,000 shares of
Vista Common Stock. As of the date hereof, there were 5,385,234 shares of Vista
Common Stock issued and outstanding, and 79,800 shares issued and held in the
treasury. As of the date hereof, there were 61,119 shares of Vista Common Stock
issuable upon exercise of outstanding Vista Options (the "Option Shares")
granted to executive officers of Vista or the Bank pursuant to the Vista Option
Plan. The Vista Disclosure Schedule sets forth (i) all options which may be
exercised for issuance of Vista Common Stock and the terms upon which the
options may be exercised, and (ii) true and complete copies of each of the Vista
Option Plan and a specimen of each form of agreement pursuant to which any
outstanding stock option was granted, including a list of each outstanding stock
option issued pursuant thereto. All issued and outstanding shares of Vista
Common Stock, and all issued and outstanding shares of capital stock of each
Vista Subsidiary, have been duly authorized and validly issued, are fully paid,
and nonassessable. The authorized capital stock of the Bank consists of
5,000,000 shares of common stock, $5.00 par value and no shares of preferred
stock. All of the outstanding shares of capital stock of each Vista Subsidiary
are owned by Vista and are free and clear of any liens, encumbrances, charges,
restrictions or rights of third parties. Except for the Vista Options and the
United Stock Option, neither Vista nor any Vista Subsidiary has or is bound by
any outstanding subscriptions, options, warrants, calls, commitments or
agreements of any character calling for the transfer, purchase or issuance of
any shares of capital stock of Vista or any Vista Subsidiary or any securities
representing the right to purchase or otherwise receive any shares of such
capital stock or any securities convertible into or representing the right to
purchase or subscribe for any such shares, and there are no agreements or
understandings with respect to voting of any such shares.
3.3. Authority; No Violation.
(a) Subject to the approval of this Agreement and the
transactions contemplated hereby by the stockholders of Vista, and subject to
the parties obtaining all necessary regulatory approvals, Vista and the Bank
have full corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby in accordance with the
terms hereof. The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly and validly approved by
the Board of Directors of each of Vista and the Bank. The execution and delivery
of the Bank Merger Agreement has been duly and validly approved by the Board of
Directors of the Bank. Except for the approvals described in paragraph (b)
below, no other corporate proceedings on the part of Vista or the Bank are
necessary to consummate the transactions contemplated hereby. This Agreement has
been duly and validly executed and delivered by Vista and the Bank, and
constitutes valid and binding obligations of Vista and the Bank, enforceable
against Vista and the Bank in accordance with its terms, except to the extent
that enforcement may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium, conservatorship, receivership or other similar laws now or hereafter
in effect relating to or affecting the enforcement of creditors' rights
generally or the rights of creditors of national banks, (ii) general equitable
principles, and (iii) laws relating to the safety and soundness of insured
depository institutions and except that no representation is made as to the
effect or availability of equitable remedies or injunctive relief.
(b) Neither the execution and delivery of this Agreement by
Vista and the Bank, nor the consummation by Vista and the Bank of the
transactions contemplated hereby in accordance with the terms hereof, or
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compliance by Vista and the Bank with any of the terms or provisions hereof,
will (i) violate any provision of Vista's Amended Certificate of Incorporation
or the Bank's Articles of Association, as the case may be, or their respective
Bylaws, (ii) assuming that the consents and approvals set forth below are duly
obtained, violate any statute, code, ordinance, rule, regulation, judgment,
order, writ, decree or injunction applicable to Vista or the Bank or any of
their respective properties or assets, or (iii) except as set forth in the Vista
Disclosure Schedule, violate, conflict with, result in a breach of any
provisions of, constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, result in the termination of,
accelerate the performance required by, or result in the creation of any lien,
security interest, charge or other encumbrance upon any of the respective
properties or assets of Vista or the Bank under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, deed of trust, license,
lease, agreement or other instrument or obligation to which Vista or the Bank is
a party, or by which either or both of them or any of their respective
properties or assets may be bound or affected except, with respect to (ii) and
(iii) above, such as individually and in the aggregate will not have a material
adverse effect on the business, operations, assets or financial condition of
Vista and its Subsidiaries on a consolidated basis, and which will not prevent
or delay the consummation of the transactions contemplated hereby. Except for
consents and approvals of or filings or registrations with or notices to the
Office of the Comptroller of the Currency ("OCC"), the Commissioner of Banking
and Insurance of the State of New Jersey (together with the Department of
Banking and Insurance, the "Commissioner"), the Department of Banking of the
Commonwealth of Pennsylvania, the Board of Governors of the Federal Reserve
System ("FRB"), the Securities and Exchange Commission ("SEC"), applicable state
securities bureaus or commissions, the New Jersey Secretary of State, and the
stockholders of Vista, no consents or approvals of or filings or registrations
with or notices to any third party or any public body or authority are necessary
on behalf of Vista or the Bank in connection with (x) the execution and delivery
by Vista and the Bank of this Agreement and (y) the consummation by Vista and
the Bank of the transactions contemplated hereby and (z) the execution and
delivery by the Bank of the Bank Merger Agreement and the consummation by the
Bank of the transactions contemplated thereby.
3.4. Financial Statements.
(a) The Vista Disclosure Schedule sets forth copies of the
consolidated statements of condition of Vista as of December 31, 2000, 1999 and
1998 and the related consolidated statements of income, stockholders' equity and
cash flows for the periods ended December 31 in each of the three years 1998
through 2000, in each case accompanied by the audit report of McGladry & Xxxxxx,
LLC, or its predecessor firm Xxxxxxx, Xxxxxx LLC, independent public accountants
with respect to Vista, and the unaudited consolidated statements of condition of
Vista as of September 30, 2001 and related unaudited consolidated statements of
income, changes in stockholders' equity and cash flows for the nine months then
ended as reported in Vista's Quarterly Report on Form 10-Q, filed with the SEC
under the Securities and Exchange Act of 1934, as amended (the "1934 Act")
(collectively, the "Vista Financial Statements"). The Vista Financial Statements
(including the related notes) have been prepared in accordance with generally
accepted accounting principles ("GAAP") consistently applied during the periods
involved, and fairly present the consolidated financial condition of Vista as of
the respective dates set forth therein, and the related consolidated statements
of income, stockholders' equity and cash flows fairly present the results of the
consolidated operations, stockholders' equity and cash flows of Vista for the
respective periods set forth therein. The parties acknowledge, however, that
Vista's statements for the nine months ended September 30, 2001 are unaudited.
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(b) The books and records of Vista and its Subsidiaries have
been and are being maintained in material compliance with applicable legal and
accounting requirements, and reflect only actual transactions.
(c) Except as and to the extent reflected, disclosed or
reserved against in the Vista Financial Statements (including the notes
thereto), as of September 30, 2001 neither Vista nor any of its Subsidiaries had
any material liabilities, whether absolute, accrued, contingent or otherwise
material to the business, operations, assets or financial condition of Vista or
any of its Subsidiaries. Since September 30, 2001 and to the date hereof,
neither Vista nor any of its Subsidiaries have incurred any material liabilities
except in the ordinary course of business and consistent with prudent banking
practice, except as specifically contemplated by this Agreement.
3.5. Brokerage Fees; Financial Advisor. Other than Xxxxx, Xxxxxxxx &
Xxxxx ("Broker"), neither Vista nor any of its Subsidiaries nor any of their
respective directors or officers has employed any broker or finder or incurred
any liability for any broker's or finder's fees or commissions in connection
with any of the transactions contemplated by this Agreement. Copies of Vista's
agreements with Broker are set forth in the Vista Disclosure Schedule. Broker
has delivered to Vista its written opinion with respect to the fairness, from a
financial point of view, of the Exchange Ratio to the stockholders of Vista in
the Merger. There are no fees (other than time charges billed at usual and
customary rates) payable to any consultants, including lawyers and accountants,
in connection with this transaction or which would be triggered by consummation
of this transaction or the termination of the services of such consultants by
Vista or any of its Subsidiaries other than fees which will be payable by Vista
to Broker.
3.6. Absence of Certain Changes or Events.
(a) There has not been any material adverse change in the
business, operations, assets or financial condition of Vista and its
Subsidiaries on a consolidated basis since September 30, 2001 and, to Vista's
knowledge, no facts or conditions exist (other than regional or national
economic conditions which affect financial institutions generally) which Vista
believes will cause or are likely to cause such a material adverse change in the
future.
(b) Except as set forth in the Vista Disclosure Schedule,
neither Vista nor any of its Subsidiaries has taken or permitted any of the
actions set forth in Section 5.2 hereof between September 30, 2001 and the date
hereof and Vista and the Vista Subsidiaries have conducted their business only
in the ordinary course, consistent with past practice.
3.7. Legal Proceedings. Except as disclosed in the Vista Disclosure
Schedule, neither Vista nor any of its Subsidiaries is a party to any, and there
are no pending or, to Vista's knowledge, threatened, legal, administrative,
arbitral or other proceedings, claims, actions or governmental investigations of
any nature ("Legal Proceedings") against Vista or any of its Subsidiaries.
Except as disclosed in the Vista Disclosure Schedule, neither Vista nor any of
its Subsidiaries is a party to any order, judgment or decree entered against
Vista or any Vista Subsidiary in any Legal Proceeding.
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3.8. Taxes and Tax Returns.
(a) Vista and each Vista Subsidiary have duly filed (and until
the Effective Time will so file) all returns, declarations, reports, information
returns and statements ("Returns") required to be filed by them in respect of
any federal, state and local taxes (including withholding taxes, penalties or
other payments required) and each has duly paid (and until the Effective Time
will so pay) all such taxes due and payable, other than taxes or other charges
which are being contested in good faith and are set forth in the Vista
Disclosure Schedule. Vista and each Vista Subsidiary have established (and until
the Effective Time will establish) on their books and records reserves for the
payment of all federal, state and local taxes not yet due and payable, but
incurred in respect of Vista or any Vista Subsidiary through such date, which
reserves are, to the knowledge of Vista, adequate for such purposes. Except as
set forth in the Vista Disclosure Schedule, the federal income tax returns of
Vista and its Subsidiaries have been examined by the Internal Revenue Service
(the "IRS") (or are closed to examination due to the expiration of the
applicable statute of limitations) and no deficiencies were asserted as a result
of such examinations which have not been resolved and paid in full. Except as
set forth in the Vista Disclosure Schedule, the applicable state income tax
returns of Vista and its Subsidiaries have been examined by the applicable
authorities (or are closed to examination due to the expiration of the statute
of limitations) and no deficiencies were asserted as a result of such
examinations which have not been resolved and paid in full. To the knowledge of
Vista, there are no audits or other administrative or court proceedings
presently pending nor any other disputes pending, or claims asserted for, taxes
or assessments upon Vista or any of its Subsidiaries, nor has Vista or any of
its Subsidiaries given any currently outstanding waivers or comparable consents
regarding the application of the statute of limitations with respect to any
taxes or Returns.
(b) Except as set forth in the Vista Disclosure Schedule,
neither Vista nor any of its Subsidiaries (i) has requested any extension of
time within which to file any tax Return which Return has not since been filed,
(ii) is a party to any agreement providing for the allocation or sharing of
taxes, (iii) is required to include in income any adjustment pursuant to Section
481(a) of the Code, by reason of a voluntary change in accounting method
initiated by Vista or any Vista Subsidiary (nor does Vista have any knowledge
that the IRS has proposed any such adjustment or change of accounting method) or
(iv) has filed a consent pursuant to Section 341(f) of the Code or agreed to
have Section 341(f)(2) of the Code apply.
3.9. Employee Benefit Plans.
(a) Except as disclosed in the Vista Disclosure Schedule,
neither Vista nor any of its Subsidiaries maintains or contributes to any
"employee pension benefit plan", within the meaning of Section 3(2)(A) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA") (the
"Vista Pension Plans"), "employee welfare benefit plan", within the meaning of
Section 3(1) of ERISA (the "Vista Welfare Plans"), stock option plan, stock
purchase plan, deferred compensation plan, severance plan, bonus plan,
employment agreement or other similar plan, program or arrangement. Neither
Vista nor any of its Subsidiaries has, since September 2, 1974, contributed to
any "Multiemployer Plan", within the meaning of Sections 3(37) and 4001(a)(3) of
ERISA.
(b) Vista has delivered to United in the Vista Disclosure
Schedule a complete and accurate copy of each of the following with respect to
each of the Vista Pension Plans and Vista Welfare Plans: (i) plan document,
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summary plan description, and summary of material modifications (if not
available, a detailed description of the foregoing); (ii) trust agreement or
insurance contract, if any; (iii) most recent IRS determination letter, if any;
(iv) most recent actuarial report, if any; and (v) most recent annual report on
Form 5500.
(c) The present value of all accrued benefits both vested and
non-vested under each of the Vista Pension Plans subject to Title IV of ERISA,
based upon the actuarial assumptions used for purposes of the most recent
actuarial valuation prepared by such Vista Pension Plan's actuary, did not
exceed the then current value of the assets of such plans allocable to such
accrued benefits. To the best of Vista's knowledge, the actuarial assumptions
then utilized for such plans were reasonable and appropriate as of the last
valuation date and reflect then current market conditions.
(d) During the last six years, the Pension Benefit Guaranty
Corporation (the "PBGC") has not asserted any claim for liability against Vista
or any of its Subsidiaries which has not been paid in full.
(e) All premiums (and interest charges and penalties for late
payment, if applicable) due to the PBGC with respect to each Vista Pension Plan
have been paid. All contributions required to be made to each Vista Pension Plan
under the terms thereof, ERISA or other applicable law have been timely made,
and all amounts properly accrued to date as liabilities of Vista and its
Subsidiaries which have not been paid have been properly recorded on the books
of Vista and its Subsidiaries.
(f) Except as disclosed on the Vista Disclosure Schedule, each
of the Vista Pension Plans, the Vista Welfare Plans and each other plan and
arrangement identified on the Vista Disclosure Schedule has been operated in
compliance in all material respects with the provisions of ERISA, the Code, all
regulations, rulings and announcements promulgated or issued thereunder, and all
other applicable governmental laws and regulations. Furthermore, the IRS has
issued a favorable determination letter, which takes into account the Tax Reform
Act of 1986 and subsequent legislation through the date of such determination
letter, with respect to each of the Vista Pension Plans and Vista is not aware
of any fact or circumstance which would disqualify any such plan, that could not
be retroactively corrected (in accordance with the procedures of the IRS).
(g) To the knowledge of Vista, within the past two plan years
no non-exempt prohibited transaction, within the meaning of Section 4975 of the
Code or Section 406 of ERISA, has occurred with respect to any of the Vista
Welfare Plans or Vista Pension Plans.
(h) No Vista Pension Plan or any trust created thereunder has
been terminated, nor have there been any "reportable events", within the meaning
of Section 4034(b) of ERISA, with respect to any of the Vista Pension Plans.
(i) To the knowledge of Vista, no "accumulated funding
deficiency", within the meaning of Section 412 of the Code, has been incurred
with respect to any of the Vista Pension Plans at the last valuation date.
(j) There are no pending, or, to the knowledge of Vista,
threatened or anticipated claims (other than routine claims for benefits) by, on
behalf of or against any of the Vista Pension Plans or the Vista Welfare Plans,
any trusts related thereto or any other plan or arrangement identified in the
Vista Disclosure Schedule.
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(k) Except as disclosed in the Vista Disclosure Schedule, no
Vista Pension or Welfare Plan provides medical or death benefits (whether or not
insured) beyond an employee's retirement or other termination of service, other
than (i) coverage mandated by law, or (ii) death benefits under any Vista
Pension Plan.
(l) Except with respect to customary health, life and
disability benefits or as disclosed in the Vista Disclosure Schedule, there are
no unfunded benefits obligations which are not accounted for by reserves shown
on the Vista Financial Statements and established under GAAP, or otherwise noted
on such financial statements.
(m) Except as disclosed in the Vista Disclosure Schedule, with
respect to each Vista Pension and Welfare Plan that is funded wholly or
partially through an insurance policy, there will be no liability of Vista or
any Vista Subsidiary as of the Effective Time under any such insurance policy or
ancillary agreement with respect to such insurance policy in the nature of a
retroactive rate adjustment, loss sharing arrangement or other actual or
contingent liability arising wholly or partially out of events occurring prior
to the Effective Time.
(n) Except as hereafter agreed to by United in writing or as
disclosed on the Vista Disclosure Schedule, the consummation of the transactions
contemplated by this Agreement will not (i) entitle any current or former
employee of Vista or any Vista Subsidiary to severance pay, unemployment
compensation or any similar payment, or (ii) accelerate the time of payment,
accelerate the vesting, or increase the amount, of any compensation or benefits
due to any current employee or former employee under any Vista Pension Plan or
Vista Welfare Plan.
3.10. Reports.
(a) The Vista Disclosure Schedule lists, and as to item (i)
below Vista has previously delivered or made available to United a complete copy
of, each (i) final registration statement, prospectus, annual, quarterly or
special report and definitive proxy statement filed by Vista since January 1,
1995 pursuant to the Securities Act of 1933, as amended ("1933 Act"), or the
1934 Act and (ii) communication (other than general advertising materials, press
releases and dividend checks) mailed by Vista to its stockholders as a class
since January 1, 1995.
(b) Since January 1, 1995, (i) Vista has filed all reports
that it was required to file with the SEC under the 1934 Act, and (ii) Vista and
the Bank each has duly filed all material forms, reports and documents which
they were required to file with each agency charged with regulating any aspect
of their business, in each case in form which was correct in all material
respects, and, subject to permission from such regulatory authorities, Vista
promptly will deliver or make available to United accurate and complete copies
of such reports. As of their respective dates, each such form, report, or
document referred to in either of clauses (i) or (ii) above, and each final
registration statement, prospectus, annual, quarterly or special report,
definitive proxy statement or communication referred to in either of clauses (i)
or (ii) of paragraph (b) above, complied in all material respects with all
applicable statutes, rules and regulations and did not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements made therein, in
light of the circumstances under which they were made, not misleading; provided
that information contained in any such document as of a later date shall be
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deemed to modify information as of an earlier date. The Vista Disclosure
Schedule lists the dates of all examinations of Vista or the Bank conducted by
the Commissioner, the OCC or the FDIC since January 1, 1995 and the dates of any
responses thereto submitted by Vista or the Bank.
3.11. Vista and Bank Information. The information relating to Vista
and the Bank to be contained in the Joint Proxy Statement/Prospectus (as defined
in Section 5.6(a) hereof) to be delivered to stockholders of Vista and United in
connection with the solicitation of their approval of this Agreement and the
transactions contemplated hereby, as of the dates the Joint Proxy
Statement/Prospectus is mailed to stockholders of Vista and United,
respectively, and up to and including the dates of each of the meetings to which
such Joint Proxy Statement/Prospectus relates, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
3.12. Compliance with Applicable Law.
(a) General. Except as set forth in the Vista Disclosure
Schedule, each of Vista and the Vista Subsidiaries holds all licenses,
franchises, permits and authorizations necessary for the lawful conduct of its
business under and pursuant to each, and has complied with and is not in default
in any respect under any, applicable law, statute, order, rule, regulation,
policy and/or guideline of any federal, state or local governmental authority
relating to Vista or any of its Subsidiaries (other than where such defaults or
non-compliances will not, alone or in the aggregate, result in a material
adverse effect on the business, operations, assets or financial condition of
Vista and its Subsidiaries on a consolidated basis) and Vista has not received
notice of violation of, and does not know of any violations of, any of the
above.
(b) CRA. Without limiting the foregoing, to its knowledge the
Bank has complied in all material respects with the Community Reinvestment Act
("CRA") and Vista has received no written notice that any person or group would
object to the consummation of a merger involving the Bank due to the CRA
performance of or rating of the Bank. Except as listed on the Vista Disclosure
Schedule to the knowledge of the Bank, no person or group has adversely
commented upon the Bank's CRA performance. The most recent CRA rating received
by the Bank was "Satisfactory."
3.13. Certain Contracts.
(a) Except as disclosed in the Vista Disclosure Schedule under
this Section or Section 3.5, (i) neither Vista nor any Vista Subsidiary is a
party to or bound by any contract or understanding (whether written or oral)
with respect to the employment or termination of any present or former officers,
employees, directors or consultants and (ii) the consummation of the
transactions contemplated by this Agreement will not (either alone or upon the
occurrence of any additional acts or events) result in any payment (whether of
severance pay or otherwise) becoming due from Vista or any Vista Subsidiary to
any officer, employee, director or consultant thereof. The Vista Disclosure
Schedule sets forth true and correct copies of all employment agreements or
termination agreements with officers, employees, directors, or consultants to
which Vista or any Vista Subsidiary is a party.
(b) Except as disclosed in the Vista Disclosure Schedule, (i)
as of the date of this Agreement, neither Vista nor any Vista Subsidiary is a
party to or bound by any commitment, agreement or other instrument which
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contemplates the payment by Vista or any Vista Subsidiary of amounts in excess
of $100,000, or which has a term extending beyond December 31, 2001 and cannot
be terminated by Vista or its subsidiary without consent of the other party
thereto, (ii) no commitment, agreement or other instrument to which Vista or any
Vista Subsidiary is a party or by which any of them is bound limits the freedom
of Vista or any Vista Subsidiary to compete in any line of business or with any
person, and (iii) neither Vista nor any Vista Subsidiary is a party to any
collective bargaining agreement.
(c) Except as disclosed in the Vista Disclosure Schedule,
neither Vista nor any Vista Subsidiary nor, to the knowledge of Vista, any other
party thereto, is in default in any material respect under any material lease,
contract, mortgage, promissory note, deed of trust, loan or other commitment or
arrangement.
3.14. Properties and Insurance.
(a) Vista and its Subsidiaries have good, and as to owned real
property, marketable title to all material assets and properties, whether real
or personal, tangible or intangible, reflected in Vista's consolidated balance
sheet as of September 30, 2001, or owned and acquired subsequent thereto (except
to the extent that such assets and properties have been disposed of for fair
value in the ordinary course of business since September 30, 2001), subject to
no encumbrances, liens, mortgages, security interests or pledges, except (i)
those items that secure liabilities that are reflected in such balance sheet or
the notes thereto or incurred in the ordinary course of business after the date
of such balance sheet, (ii) statutory liens for amounts not yet delinquent or
which are being contested in good faith, (iii) such encumbrances, liens,
mortgages, security interests, pledges and title imperfections that are not in
the aggregate material to the business, operations, assets, and financial
condition of Vista and its Subsidiaries taken as a whole and (iv) with respect
to owned real property, title imperfections noted in title reports delivered to
United prior to the date hereof. Vista and its Subsidiaries as lessees have the
right under valid and subsisting leases to occupy, use, possess and control all
property leased by them in all material respects as presently occupied, used,
possessed and controlled by them.
(b) The Vista Disclosure Schedule lists all policies of
insurance and bonds covering business operations and all insurable properties
and assets of Vista and its Subsidiaries showing all risks insured against, in
each case under valid, binding and enforceable policies or bonds, with such
amounts and such deductibles as are specified. As of the date hereof, neither
Vista nor any of its Subsidiaries has received any notice of cancellation or
notice of a material amendment of any such insurance policy or bond or is in
default under such policy or bond, no coverage thereunder is being disputed and
all material claims thereunder have been filed in a timely fashion.
3.15. Minute Books. The minute books of Vista and its Subsidiaries
contain records that are accurate in all material respects of all meetings and
other corporate action held of their respective stockholders and Boards of
Directors (including committees of their respective Boards of Directors).
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3.16. Environmental Matters. Except as set forth in the Vista
Disclosure Schedule:
(a) Neither Vista nor any Vista Subsidiary has received any
written notice, citation, claim, assessment, proposed assessment or demand for
abatement alleging that Vista or such Vista Subsidiary (either directly or as a
trustee or fiduciary, or as a successor-in-interest in connection with the
enforcement of remedies to realize the value of properties serving as collateral
for outstanding loans) is responsible for the correction or cleanup of any
condition resulting from the violation of any law, ordinance or other
governmental regulation regarding environmental matters, which correction or
cleanup would be material to the business, operations, assets or financial
condition of Vista and the Vista Subsidiaries taken as a whole. Vista has no
knowledge that any toxic or hazardous substances or materials have been emitted,
generated, disposed of or stored on any real property owned or leased by Vista
or any Vista Subsidiary, as OREO or otherwise, or owned or controlled by Vista
or any Vista Subsidiary as a trustee or fiduciary (collectively, "Properties"),
in any manner that violates or, after the lapse of time may violate, any
presently existing federal, state or local law or regulation governing or
pertaining to such substances and materials.
(b) Vista has no knowledge that any of the Properties has been
operated in any manner in the three years prior to the date of this Agreement
that violated any applicable federal, state or local law or regulation governing
or pertaining to toxic or hazardous substances and materials, the violation of
which would have a material adverse effect on the business, operations, assets
or financial condition of Vista and the Vista Subsidiaries taken as a whole.
(c) To the knowledge of Vista, there are no underground
storage tanks on, in or under any of the Properties and no underground storage
tanks have been closed or removed from any of the Properties while the property
was owned, operated or controlled by Vista or any Vista Subsidiary.
3.17. Reserves. The reserve for loan and lease losses in the September
30, 2001 Vista Financial Statements was, to Vista's knowledge, adequate based
upon past loan loss experiences and potential losses in the current portfolio to
cover all then known or anticipated loan losses.
3.18. No Excess Parachute Payments. Except as disclosed in the Vista
Disclosure Schedule, no officer, director, employee or agent (or former officer,
director, employee or agent) of Vista or any Vista Subsidiary is entitled now,
or will or may be entitled to as a consequence of this Agreement, the Merger or
the Bank Merger, to any payment or benefit from Vista, a Vista Subsidiary,
United or UTB which if paid or provided would constitute an "excess parachute
payment", as defined in Section 280G of the Code or regulations promulgated
thereunder.
3.19. Agreements with Bank Regulators. Except as disclosed in the
Vista Disclosure Schedule, neither Vista nor any Vista Subsidiary is a party to
any agreement or memorandum of understanding with, or a party to any commitment
letter, board resolution submitted to a regulatory authority or similar
undertaking to, or is subject to any order or directive by, or is a recipient of
any extraordinary supervisory letter from, any court, governmental authority or
other regulatory or administrative agency or commission, domestic or foreign
("Governmental Entity") which restricts materially the conduct of its business,
17
or in any manner relates to its capital adequacy, its credit or reserve policies
or its management, except for those the existence of which has been disclosed in
writing to United by Vista prior to the date of this Agreement, nor has Vista
been advised by any Governmental Entity that it is contemplating issuing or
requesting (or is considering the appropriateness of issuing or requesting) any
such order, decree, agreement, memorandum of understanding, extraordinary
supervisory letter, commitment letter or similar submission, except as disclosed
in writing to United by Vista prior to the date of this Agreement. Neither Vista
nor any Vista Subsidiary is required by Section 32 of the Federal Deposit
Insurance Act to give prior notice to a Federal banking agency of the proposed
addition of an individual to its board of directors or the employment of an
individual as a senior executive officer, except as disclosed in writing to
United by Vista prior to the date of this Agreement.
3.20. Disclosure. No representation or warranty contained in Article
III of this Agreement contains any untrue statement of a material fact or omits
to state a material fact necessary to make the statements herein not misleading.
3.21. Board Approval. This Agreement, and the transactions
contemplated hereby, have been approved by eighty percent (80%) or more of the
entire Board of Directors of Vista.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF UNITED
References herein to the "United Disclosure Schedule" shall mean all of
the disclosure schedules required by this Article IV, dated as of the date
hereof and referenced to the specific sections and subsections of Article IV of
this Agreement, which have been delivered on the date hereof by United to Vista.
United hereby represents and warrants to Vista as follows:
4.1. Corporate Organization.
(a) United is a corporation duly organized and validly
existing and in good standing under the laws of the State of New Jersey. United
has the corporate power and authority to own or lease all of its properties and
assets and to carry on its business as it is now being conducted, and is duly
licensed or qualified to do business in each jurisdiction in which the nature of
the business conducted by it or the character or location of the properties and
assets owned or leased by it makes such licensing or qualification necessary,
except where the failure to be so licensed or qualified would not have a
material adverse effect on the business, operations, assets or financial
condition of United or its Subsidiaries (defined below). United is registered as
a bank holding company under the BHCA.
(b) Each of the Subsidiaries of United are listed in the
United Disclosure Schedule. The term "Subsidiary" when used in this Agreement
with reference to United, means any corporation, joint venture, association,
partnership, trust or other entity in which United has, directly or indirectly,
at least a 50% interest or acts as a general partner. Each Subsidiary of United
is duly organized and validly existing and in good standing under the laws of
the jurisdiction of its incorporation. UTB is a New Jersey chartered bank whose
deposits are insured by the BIF and the SAIF to the fullest extent permitted by
law. Each Subsidiary of United has the corporate power and authority to own or
lease all of its properties and assets and to carry on its business as it is now
being conducted and is duly licensed or qualified to do business in each
jurisdiction in which the nature of the business conducted by it or the
18
character or location of the properties and assets owned or leased by it makes
such licensing or qualification necessary, except where the failure to be so
licensed or qualified would not have a material adverse effect on the business,
operations, assets or financial condition of United and its Subsidiaries.
4.2. Capitalization. The authorized capital stock of United consists
of 25,000,000 shares of United Common Stock and 1,000,000 shares of preferred
stock ("United Preferred Stock"). As of September 30, 2001, there were
16,190,764 shares of United Common Stock issued and outstanding, including
1,024,401 treasury shares and 3000 shares of restricted stock granted under the
United National Bancorp Long Term Stock Based Incentive Plan (the "United Option
Plan"), and there were no shares of United Preferred Stock outstanding. Since
September 30, 2001, to and including the date of this Agreement, no additional
shares of United Common Stock have been issued except in connection with
exercises of options granted under the United Option Plan or grants of
restricted stock under the United Option Plan. As of September 30, 2001, except
for 732,538 shares of United Common Stock issuable upon exercise of outstanding
stock options granted pursuant to the United Option Plan and the Non-Employee
Director Stock Option Plan (the "United Director Option Plan"), and except for
shares of United Series A Preferred Stock and shares of United Common Stock
reserved for issuance pursuant to the United Shareholder Rights Plan dated as of
November 1, 2001 (the "United Rights Plan"), there were no shares of United
Common Stock issuable upon the exercise of outstanding stock options or
otherwise. All issued and outstanding shares of United Common Stock, and all
issued and outstanding shares of capital stock of United's Subsidiaries, have
been duly authorized and validly issued, are fully paid, nonassessable and free
of preemptive rights, and are free and clear of all liens, encumbrances,
charges, restrictions or rights of third parties. All of the outstanding shares
of capital stock of United's Subsidiaries are owned by United free and clear of
any liens, encumbrances, charges, restrictions or rights of third parties.
Except for the options referred to above under the United Option Plan and the
United Director Option Plan, neither United nor any of United's Subsidiaries has
or is bound by any outstanding subscriptions, options, warrants, calls,
commitments or agreements of any character calling for the transfer, purchase or
issuance of any shares of capital stock of United or United's Subsidiaries or
any securities representing the right to otherwise receive any shares of such
capital stock or any securities convertible into or representing the right to
purchase or subscribe for any such shares, and there are no agreements or
understandings with respect to voting of any such shares. No additional grants
of awards, or exercises of outstanding awards, under the United Option Plan or
United Director Option Plan, or repurchases of United Common Stock, prior to the
Effective Time shall be required to be disclosed or reported to Vista to keep
the representations in this section true or correct.
4.3. Authority; No Violation.
(a) United and UTB have full corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby in accordance with the terms hereof. United has a sufficient
number of authorized but unissued shares of United Common Stock to pay the
consideration for the Merger set forth in Article II of this Agreement. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly approved by the
Board of Directors of each of United and UTB. The execution and delivery of the
Bank Merger Agreement has been duly and validly approved by the Board of
Directors of UTB. No other corporate proceedings on the part of United and UTB
are necessary to consummate the transactions contemplated hereby (except for the
approval by United of the Bank Merger Agreement and except for any stockholder
approval that may be required by the NASDAQ/NMS listing rules). This Agreement
19
has been duly and validly executed and delivered by United and UTB and
constitutes a valid and binding obligation of United and UTB, enforceable
against United and UTB in accordance with its terms, except to the extent that
enforcement may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium, conservatorship, receivership or other similar laws now or hereafter
in effect relating to or affecting the enforcement of creditors' rights
generally or the rights of creditors of New Jersey-chartered banks, (ii) general
equitable principles, and (iii) laws relating to the safety and soundness of
insured depository institutions and except that no representation is made as to
the effect or availability of equitable remedies or injunctive relief.
(b) Neither the execution or delivery of this Agreement nor
the consummation by United and UTB of the transactions contemplated hereby in
accordance with the terms hereof, will (i) violate any provision of the
Certificate of Incorporation or Bylaws of United or the Articles of Association
or Bylaws of UTB, (ii) assuming that the consents and approvals set forth below
are duly obtained, violate any statute, code, ordinance, rule, regulation,
judgment, order, writ, decree or injunction applicable to United or UTB or any
of their respective properties or assets, or (iii) violate, conflict with,
result in a breach of any provision of, constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default) under, result
in the termination of, accelerate the performance required by, or result in the
creation of any lien, security interest, charge or other encumbrance upon any of
the properties or assets of United or UTB under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, deed of trust, license,
lease, agreement or other instrument or obligation to which United or UTB is a
party, or by which United or UTB or any of their properties or assets may be
bound or affected, except, with respect to (ii) and (iii) above, such as in the
aggregate will not have a material adverse effect on the business, operations,
assets or financial condition of United and United's Subsidiaries on a
consolidated basis, or the ability of United and UTB to consummate the
transactions contemplated hereby. Except for consents and approvals of or
filings or registrations with or notices to the OCC, the FRB, the New Jersey
Secretary of State, the SEC, or applicable state securities bureaus or
commissions, no consents or approvals of or filings or registrations with or
notices to any third party or any public body or authority are necessary on
behalf of United or UTB in connection with (a) the execution and delivery by
United or UTB of this Agreement, (b) the consummation by United of the Merger
and the other transactions contemplated hereby and (c) the execution and
delivery by UTB of the Bank Merger Agreement and the consummation by UTB of the
Bank Merger and other transactions contemplated thereby. To United's knowledge,
no fact or condition exists which United has reason to believe will prevent it
or UTB from obtaining the aforementioned consents and approvals.
4.4. Financial Statements.
(a) United has previously delivered to Vista copies of the
consolidated statements of financial condition of United as of December 31,
2000, 1999 and 1998, the related consolidated statements of income, changes in
stockholders' equity and of cash flows for the periods ended December 31 in each
of the three fiscal years 1998 through 2000, in each case accompanied by the
audit report of KPMG LLP, the independent public accountants with respect to
United, and the unaudited consolidated statements of condition of United as of
September 30, 2001 and the related unaudited consolidated statements of income,
changes in stockholders' equity and cash flows for the nine months then ended as
reported in United's Quarterly Report on Form 10-Q, filed with the SEC under the
1934 Act (collectively, the "United Financial Statements"). The United Financial
Statements (including the related notes), have been prepared in accordance with
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GAAP consistently applied during the periods involved (except as approved by
such independent public accountants and disclosed therein), and fairly present
the consolidated financial position of United as of the respective dates set
forth therein, and the related consolidated statements of income, changes in
stockholders' equity and of cash flows (including the related notes, where
applicable) fairly present the results of the consolidated operations and
changes in stockholders' equity and of cash flows of United for the respective
fiscal periods set forth therein. The parties acknowledge, however, that
United's statements for the nine months ended September 30, 2001 are unaudited.
(b) The books and records of United and its subsidiaries have
been and are being maintained in material compliance with applicable legal and
accounting requirements, and reflect only actual transactions.
(c) Except as and to the extent reflected, disclosed or
reserved against in the United Financial Statements (including the notes
thereto), as of September 30, 2001 neither United nor any of its Subsidiaries
had or has, as the case may be, any material obligation or liability, whether
absolute, accrued, contingent or otherwise, material to the business,
operations, assets or financial condition of United or any of its Subsidiaries
and which are required by GAAP to be disclosed in the United Financial
Statements. Since September 30, 2001, neither United nor any of its Subsidiaries
have incurred any material liabilities, except in the ordinary course of
business and consistent with prudent banking practice.
4.5. Brokerage Fees. Except as set forth in the United Disclosure
Schedule, neither United nor UTB nor any of their respective directors or
officers has employed any broker or finder or incurred any liability for any
broker's or finder's fees or commissions in connection with any of the
transactions contemplated by this Agreement.
4.6. Absence of Certain Changes or Events. There has not been any
material adverse change in the business, operations, assets or financial
condition of United and United's Subsidiaries on a consolidated basis since
September 30, 2001 and to United's knowledge, no fact or condition exists (other
than regional or national economic conditions which affect financial
institutions generally) which United believes will cause or is likely to cause
such a material adverse change in the future.
4.7. United Information. The information relating to United and its
subsidiaries, this Agreement and the transactions contemplated hereby in the
Registration Statement and Joint Proxy Statement/Prospectus (as defined in
Section 5.6(a) hereof), as of the dates of the mailing of the Joint Proxy
Statement/Prospectus to stockholders of United and Vista, respectively, and up
to and including the dates of each meeting to which such Joint Proxy
Statement/Prospectus relates, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
4.8. Capital Adequacy. As of the date of this Agreement each of
United and UTB has, and at the Effective Time, after taking into effect the
Merger and the transactions contemplated hereunder, each of United and UTB will
have, sufficient capital to satisfy all applicable regulatory capital
requirements.
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4.9. United Common Stock. At the Effective Time, the United Common
Stock to be issued pursuant to the terms of Section 2.1, when so issued, shall
be duly authorized, validly issued, fully paid, and non-assessable, free of
preemptive rights and free and clear of all liens, encumbrances or restrictions
created by or through United, with no personal liability attaching to the
ownership thereof.
4.10. Legal Proceedings. Except as disclosed in the United Disclosure
Schedule, neither United nor its Subsidiaries is a party to any, and there are
no pending or, to United's knowledge, threatened, Legal Proceedings against
United or any of its Subsidiaries which, if decided adversely to United, or any
of its Subsidiaries, would have a material adverse effect on the business,
operations, assets or financial condition of United and its Subsidiaries on a
consolidated basis. Except as disclosed in the United Disclosure Schedule,
neither United nor any of United's Subsidiaries is a party to any order,
judgment or decree entered against United or any such Subsidiary in any Legal
Proceeding which would have a material adverse effect on the business,
operations, assets or financial condition of United and its Subsidiaries on a
consolidated basis.
4.11. Taxes and Tax Returns. United and its Subsidiaries have duly
filed (and until the Effective Time will so file) all Returns required to be
filed by them in respect of any federal, state and local taxes (including
withholding taxes, penalties or other payments required) and have duly paid (and
until the Effective Time will so pay) all such taxes due and payable, other than
taxes or other charges which are being contested in good faith. United and its
Subsidiaries have established (and until the Effective Time will establish) on
their books and records reserves for the payment of all federal, state and local
taxes not yet due and payable, but incurred in respect of United and its
Subsidiaries through such date, which reserves are, to the knowledge of United,
adequate for such purposes. No deficiencies exist or have been asserted based
upon the federal income tax returns of United and UTB.
4.12. Employee Benefit Plans.
(a) United and its Subsidiaries maintain or contribute to
certain "employee pension benefit plans" (the "United Pension Plans"), as such
term is defined in Section 3 of ERISA, and "employee welfare benefit plans" (the
"United Welfare Plans"), as such term is defined in Section 3 of ERISA. Since
September 2, 1974, neither United nor its Subsidiaries have contributed to any
"Multiemployer Plan", as such term is defined in Section 3(37) of ERISA.
(b) Each of the United Pension Plans and each of the United
Welfare Plans has been operated in compliance in all material respects with the
provisions of ERISA, the Code, all regulations, rulings and announcements
promulgated or issued thereunder, and all other applicable governmental laws and
regulations.
(c) The present value of all accrued benefits both vested and
non-vested under each of the United Pension Plans subject to Title IV of ERISA,
based upon the actuarial assumptions used for purposes of the most recent
actuarial valuation prepared by such United Pension Plan's actuary, did not
exceed the then current value of the assets of such plans allocable to such
accrued benefits. To the best of United's knowledge, the actuarial assumptions
then utilized for such plans were reasonable and appropriate as of the last
valuation date and reflect then current market conditions.
(d) During the last six years, the PBGC has not asserted any
claim for liability against United or any of its Subsidiaries which has not been
paid in full.
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(e) All premiums (and interest charges and penalties for late
payment, if applicable) due to the PBGC with respect to each United Pension Plan
have been paid. All contributions required to be made to each United Pension
Plan under the terms thereof, ERISA or other applicable law have been timely
made, and all amounts properly accrued to date as liabilities of United and its
Subsidiaries which have not been paid have been properly recorded on the books
of United and its Subsidiaries.
(f) Except as disclosed on the United Disclosure Schedule,
each of the United Pension Plans, the United Welfare Plans and each other plan
and arrangement identified on the United Disclosure Schedule has been operated
in compliance in all material respects with the provisions of ERISA, the Code,
all regulations, rulings and announcements promulgated or issued thereunder, and
all other applicable governmental laws and regulations. Furthermore, the IRS has
issued a favorable determination letter, which takes into account the Tax Reform
Act of 1986 and subsequent legislation through the date of such determination
letter, with respect to each of the United Pension Plans and United is not aware
of any fact or circumstance which would disqualify any such plan, that could not
be retroactively corrected (in accordance with the procedures of the IRS).
(g) To the knowledge of United, within the past two plan years
no non-exempt prohibited transaction, within the meaning of Section 4975 of the
Code or Section 406 of ERISA, has occurred with respect to any of the United
Welfare Plans or United Pension Plans.
(h) No United Pension Plan or any trust created thereunder has
been terminated, nor have there been any "reportable events", within the meaning
of Section 4034(b) of ERISA, with respect to any of the United Pension Plans.
(i) To the knowledge of United, no "accumulated funding
deficiency", within the meaning of Section 412 of the Code, has been incurred
with respect to any of the United Pension Plans.
4.13. Reports.
(a) Each communication mailed by United to its stockholders
since January 1, 1995, and each annual, quarterly or special report, proxy
statement or communication, as of its date, complied in all material respects
with all applicable statutes, rules and regulations enforced or promulgated by
the applicable regulatory agency and did not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading; provided that
disclosures as of a later date shall be deemed to modify disclosures as of an
earlier date.
(b) Since January 1, 1995, (i) United has filed all reports
that it was required to file with the SEC under the 1934 Act, and (ii) United
and UTB each has duly filed all material forms, reports and documents which they
were required to file with each agency charged with regulating any aspect of
their business, in each case in form which was correct in all material respects,
and, subject to permission from such regulatory authorities, United promptly
will deliver or make available to Vista accurate and complete copies of such
reports. As of their respective dates, each such form, report, or document
referred to in either of clauses (i) or (ii) above, and each final registration
statement, prospectus, annual, quarterly or special report, definitive proxy
statement or communication referred to in either of clauses (i) or (ii) of
paragraph (b) above, complied in all material respects with all applicable
statutes, rules and regulations and did not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
23
or necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading; provided that
information contained in any such document as of a later date shall be deemed to
modify information as of an earlier date. The United Disclosure Schedule lists
the dates of all examinations of United or UTB conducted by either the OCC or
the FDIC since January 1, 1995 and the dates of any responses thereto submitted
by United or UTB.
4.14. Compliance with Applicable Law. United and its Subsidiaries hold
all material licenses, franchises, permits and authorizations necessary for the
lawful conduct of their respective businesses under and pursuant to each, and
has complied with and is not in default in any respect under any, applicable
law, statute, order, rule, regulation, policy and/or guideline of any federal,
state or local governmental authority or the NASDAQ/NMS relating to United and
its Subsidiaries (other than where such default or non-compliance will not
result in a material adverse effect on the business, operations, assets or
financial condition of United and its Subsidiaries on a consolidated basis) and
United has not received notice of violations of, and does not know of any
violations (other than violations which will not, alone or in the aggregate,
result in a material adverse effect on the business operations, assets or
financial condition of United and its Subsidiaries on a consolidated basis) of,
any of the above. Without limiting the foregoing, to its knowledge UTB has
complied in all material respects with the CRA and United has received no
written notice that any person or group would object to the consummation of a
merger involving UTB due to the CRA performance or rating of UTB. To the
knowledge of United, except as listed on the United Disclosure Schedule, no
person or group has adversely commented upon UTB's CRA performance. The most
recent CRA rating received by UTB was "Satisfactory."
4.15. Properties and Insurance.
(a) United and its Subsidiaries have good and, as to owned
real property, marketable title to all material assets and properties, whether
real or personal, tangible or intangible, reflected in United's consolidated
balance sheet as of September 30, 2001, or owned and acquired subsequent thereto
(except to the extent that such assets and properties have been disposed of for
fair value in the ordinary course of business since September 30, 2001). United
and its Subsidiaries as lessees have the right under valid and subsisting leases
to occupy, use, possess and control all real property leased by them in all
material respects as presently occupied, used, possessed and controlled by them.
(b) The business operations and all insurable properties and
assets of United and its Subsidiaries are insured for their benefit against all
risks which, in the reasonable judgment of the management of United should be
insured against, in each case under valid, binding and enforceable policies or
bonds, with such deductibles and against such risks and losses as are in the
opinion of the management of United adequate for the business engaged in by
United and its Subsidiaries. As of the date hereof, neither United nor any of
its Subsidiaries has received any notice of cancellation or notice of a material
amendment of any such insurance policy or bond or is in default under such
policy or bond, no coverage thereunder is being disputed and all material claims
thereunder have been filed in a timely fashion.
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4.16. Minute Books. The minute books of United and its Subsidiaries
contain records that are accurate in all material respects of all meetings and
other corporate action held of their respective stockholders and Boards of
Directors (including committees of their respective Boards of Directors).
4.17. Environmental Matters. Except as disclosed in the United
Disclosure Schedule, neither United nor any of its Subsidiaries has received any
written notice, citation, claim, assessment, proposed assessment or demand for
abatement alleging that United or any of its Subsidiaries (either directly or as
a successor-in-interest in connection with the enforcement of remedies to
realize the value of properties serving as collateral for outstanding loans) is
responsible for the correction or clean-up of any condition material to the
business, operations, assets or financial condition of United or its
Subsidiaries. Except as disclosed in the United Disclosure Schedule, United has
no knowledge that any toxic or hazardous substances or materials have been
emitted, generated, disposed of or stored on any property owned or leased by
United or any of its Subsidiaries, as OREO or otherwise, or owned or controlled
by United or any of its Subsidiaries as a trustee or fiduciary in any manner,
that violates or, after the lapse of time may violate, any presently existing
federal, state or local law or regulation governing or pertaining to such
substances and materials, the violation of which would have a material adverse
effect on the business, operations, assets or financial condition of United and
its Subsidiaries on a consolidated basis.
4.18. Reserves. The allowance for possible loan and lease losses in
the September 30, 2001 United Financial Statements was, to United's knowledge,
adequate at the time based upon past loan loss experiences and potential losses
in the portfolio at the time to cover all then known or anticipated loan losses.
4.19. Agreements with Bank Regulators. Except as disclosed in the
United Disclosure Schedule, neither United nor any United Subsidiary is a party
to any agreement or memorandum of understanding with, or a party to any
commitment letter, board resolution submitted to a regulatory authority or
similar undertaking to, or is subject to any order or directive by, or is a
recipient of any extraordinary supervisory letter from, any Governmental Entity
which restricts materially the conduct of its business, or in any manner relates
to its capital adequacy, its credit or reserve policies or its management,
except for those the existence of which has been disclosed in writing to Vista
by United prior to the date of this Agreement, nor has United been advised by
any Governmental Entity that it is contemplating issuing or requesting (or is
considering the appropriateness of issuing or requesting) any such order,
decree, agreement, memorandum of understanding, extraordinary supervisory
letter, commitment letter or similar submission, except as disclosed in writing
to Vista by United prior to the date of this Agreement. Neither United nor any
United Subsidiary is required by Section 32 of the Federal Deposit Insurance Act
to give prior notice to a Federal banking agency of the proposed addition of an
individual to its board of directors or the employment of an individual as a
senior executive officer, except as disclosed in writing to Vista by United
prior to the date of this Agreement.
4.20. Disclosures. No representation or warranty contained in Article
IV of this Agreement contains any untrue statement of a material fact or omits
to state a material fact necessary to make the statements herein not misleading.
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ARTICLE V
COVENANTS OF THE PARTIES
5.1. Conduct of the Business of Vista. During the period from the
date of this Agreement to the Effective Time, Vista shall, and shall cause each
of its Subsidiaries to, conduct its respective business and engage in
transactions permitted hereunder only in the ordinary course and consistent with
prudent banking practice, except with the prior written consent of United, which
consent will not be unreasonably withheld. Vista also shall use all reasonable
efforts to (i) preserve its business organization and that of each Vista
Subsidiary intact, (ii) keep available to itself the present services of its
employees and those of its Subsidiaries, provided that neither Vista nor any of
its Subsidiaries shall be required to take any unreasonable or extraordinary act
or any action which would conflict with any other term of this Agreement, and
(iii) preserve for itself and United the goodwill of its customers and those of
its Subsidiaries and others with whom business relationships exist.
5.2. Negative Covenants and Dividend Covenants.
(a) Vista agrees that from the date hereof to the Effective
Time, except as set forth in Section 5.2 of the Vista Disclosure Schedule or as
otherwise approved by United in writing or as permitted or required by this
Agreement, it will not, nor will it permit any of its Subsidiaries to:
(i) change any provision of its Certificate of
Incorporation or Charter, as the case may be, or Bylaws or any similar governing
documents;
(ii) except for the issuance of Vista Common Stock
pursuant to the present terms of the outstanding Vista Options and the United
Stock Option and as disclosed in the Vista Disclosure Schedule, change the
number of shares of its authorized or issued common or preferred stock or issue
or grant any option, warrant, call, commitment, subscription, right to purchase
or agreement of any character relating to the authorized or issued capital stock
of Vista or any Vista Subsidiary or any securities convertible into shares of
such stock, or split, combine or reclassify any shares of its capital stock, or
redeem or otherwise acquire any shares of such capital stock, or declare, set
aside or pay any dividend, or other distribution (whether in cash, stock or
property or any combination thereof) in respect of its capital stock, or redeem
or otherwise acquire any shares of such capital stock, other than Vista's
regular quarterly cash dividends in amounts not to exceed $.16 per calendar
quarter, with the dividend payment dates to be coordinated with United, it being
the intention of the parties that the stockholders of Vista receive dividends
for any particular calendar quarter on either the Vista Common Stock or the
United Common Stock acquired in exchange therefor pursuant to the terms of this
Agreement but not both; provided further, that nothing contained herein shall be
deemed to affect the ability of the Bank to pay dividends on its capital stock
to Vista;
(iii) grant any severance or termination pay (other than
pursuant to agreements or policies of Vista in effect on the date hereof and
disclosed in the Vista Disclosure Schedule or as agreed to by United in writing)
to, or enter into or amend any employment agreement with, any of its directors,
officers or employees, adopt any new employee benefit plan or arrangement of any
type or amend any such existing benefit plan or arrangement; or, without the
prior consent of United, which consent shall not be unreasonably withheld or
delayed, award any increase in compensation or benefits to its directors,
officers or employees;
26
(iv) sell or dispose of any substantial amount of assets
or incur any significant liabilities other than in the ordinary course of
business consistent with past practices and policies;
(v) make any capital expenditures other than pursuant
to binding commitments existing on the date hereof and expenditures necessary to
maintain existing assets in good repair and expenditures described in business
plans or budgets previously furnished to United;
(vi) file any applications or make any contract with
respect to branching or site location or relocation.
(vii) agree to acquire in any manner whatsoever (other
than to foreclose on collateral for a defaulted loan) any business or entity;
(viii) make any material change in its accounting methods
or practices, other than changes required in accordance with GAAP;
(ix) take any action that would result in any of the
representations and warranties contained in Article III of this Agreement not
being true and correct in any material respect at the Effective Time; or
(x) agree to do any of the foregoing.
(b) United agrees that from the date hereof to the Effective
Time, except as otherwise approved by Vista in writing or as permitted or
required by this Agreement, it will not, nor will it permit any of its
Subsidiaries to:
(i) take any action that is intended or may reasonably
be expected to result in any of its representations and warranties set forth in
this Agreement being or becoming untrue in any material respect, or that may
result in any condition, agreement or covenant set forth in this Agreement not
being satisfied; or
(ii) authorize or enter into any agreement or commitment
to do the foregoing.
5.3. No Solicitation. So long as this Agreement remains in effect,
Vista and the Bank shall not, directly or indirectly, encourage or solicit or
hold discussions or negotiations with, or provide any information to, any
person, entity or group (other than United) concerning any merger or sale of
shares of capital stock or sale of substantial assets or liabilities not in the
ordinary course of business, or similar transactions involving Vista or the Bank
(an "Acquisition Transaction"). Notwithstanding the foregoing, Vista may enter
into discussions or negotiations or provide information in connection with an
unsolicited possible Acquisition Transaction if the Board of Directors of Vista,
after consulting with counsel, determines in the exercise of its fiduciary
responsibilities that such discussions or negotiations should be commenced or
such information should be furnished. Vista shall promptly communicate to United
the terms of any proposal, whether written or oral, which it may receive in
respect of any such Acquisition Transaction and the fact that it is having
discussions or negotiations with a third party about an Acquisition Transaction.
27
5.4. Current Information. During the period from the date of this
Agreement to the Effective Time, Vista will cause one or more of its designated
representatives to confer on a monthly basis, or on such other schedule as the
parties may mutually agree upon, with representatives of United regarding
Vista's business, operations, properties, assets and financial condition and
matters relating to the completion of the transactions contemplated herein.
Without limiting the foregoing, promptly, but in any event within 30 days, after
granting any new loan or extension of credit, or any renewal of an existing loan
or extension of credit, in excess of $250,000, Vista and the Bank will send
United a description thereof, and thereafter Vista will promptly send to United
copies of such documents relating thereto as United shall reasonably request. As
soon as reasonably available, but in no event more than 45 days after the end of
each fiscal quarter (other than the last fiscal quarter of each fiscal year)
ending after the date of this Agreement, Vista will deliver to United the Bank's
call reports filed with the FDIC and Vista's quarterly reports on Form 10-Q as
filed with the SEC under the 1934 Act, and United will deliver to Vista United's
quarterly reports on Form 10-Q, as filed with the SEC under the 1934 Act, and
UTB's call reports filed with the FDIC. As soon as reasonably available, but in
no event more than 90 days after the end of each fiscal year, Vista will deliver
to United and United will deliver to Vista their respective year end financial
statements and related reports to stockholders and regulatory agencies
including, without limitation, their respective annual reports on Form 10-K as
filed with the SEC.
5.5. Access to Properties and Records; Confidentiality.
(a) Vista and the Bank shall permit United and its agents and
representatives, including, without limitation, officers, directors, employees,
attorneys, accountants and financial advisors (collectively, "Representatives"),
reasonable access to their respective properties, and shall disclose and make
available to United and its Representatives all books, papers and records
relating to their respective assets, stock ownership, properties, operations,
obligations and liabilities, including, but not limited to, all books of account
(including the general ledger), tax records, minute books of directors' and
stockholders' meetings, organizational documents, bylaws, material contracts and
agreements, filings with any regulatory authority, independent auditors' work
papers (subject to the receipt by such auditors of a standard access
representation letter), litigation files, plans affecting employees, and any
other business activities or prospects in which United and its Representatives
may have a reasonable interest. Vista and the Bank shall not be required to
provide access to or to disclose information where such access or disclosure
would violate or prejudice the rights of any customer or would contravene any
law, rule, regulation, order or judgment or, in the case of a document which is
subject to an attorney client privilege, would compromise the right of Vista or
the Bank to claim that privilege. The parties will use all reasonable efforts to
obtain waivers of any such restriction (other than the attorney client
privilege) and in any event make appropriate substitute disclosure arrangements
under circumstances in which the restrictions of the preceding sentence apply.
(b) All information furnished by the parties hereto previously
in connection with transactions contemplated by this Agreement or pursuant
hereto shall be used solely for the purpose of evaluating the Merger
contemplated hereby, shall be kept confidential and shall be treated as the sole
property of the party delivering the information until consummation of the
Merger contemplated hereby and, if such Merger shall not occur, each party and
each party's Representatives shall return to the other party all documents or
other materials containing, reflecting or referring to such information, will
not retain any copies of such information, shall keep confidential all such
information, and shall not directly or indirectly use such information for any
competitive or other commercial purposes or any other purposes not expressly
28
permitted hereby. Each party shall inform its Representatives of the terms of
this Section 5.5. Any breach of this Section 5.5 by a Representative of a party
hereto shall conclusively be deemed to be a breach thereof by such party. In the
event that the Merger contemplated hereby is abandoned, all documents, notes and
other writings prepared by a party hereto or its Representatives based on
information furnished by the other party shall be promptly destroyed. The
obligation to keep such information confidential shall continue for five years
from the date the proposed Merger is abandoned but shall not apply to (i) any
information which (A) the party receiving the information can establish by
convincing evidence was already in its possession prior to the disclosure
thereof to it by the other party; (B) was then generally known to the public;
(C) became known to the public through no fault of the party receiving such
information; or (D) was disclosed to the party receiving such information by a
third party not bound by an obligation of confidentiality; or (ii) disclosures
pursuant to a legal, regulatory or examination requirement or in accordance with
an order of a court of competent jurisdiction.
(c) In addition to all other remedies that may be available to
any party hereto in connection with a breach by any other party hereto of its or
its Representative's obligations under this Section 5.5, each party hereto shall
be entitled to specific performance and injunctive and other equitable relief
with respect to this Section 5.5. Each party hereto waives, and agrees to use
all reasonable efforts to cause its Representatives to waive, any requirement to
secure or post a bond in connection with any such relief.
5.6. Regulatory Matters.
(a) For the purposes of holding the meetings of Vista
stockholders and United stockholders referred to in Section 5.7 hereof and
registering or otherwise qualifying under applicable federal and state
securities laws United Common Stock to be issued to Record Holders and Optionees
in connection with the Merger, the parties hereto shall cooperate in the
preparation and filing by United of a Registration Statement with the SEC which
shall include an appropriate joint proxy statement and prospectus satisfying all
applicable requirements of applicable state and federal laws, including the 1933
Act, the 1934 Act and applicable state securities laws and the rules and
regulations thereunder. (Such joint proxy statement and prospectus in the form
mailed by Vista to the Vista stockholders and Optionees together with any and
all amendments or supplements thereto, and in the form mailed by United to the
United stockholders together with any and all amendments or supplements thereto,
is collectively herein referred to as the "Joint Proxy Statement/Prospectus" and
the various documents to be filed by United under the 1933 Act with the SEC to
register for sale the United Common Stock to be issued to Record Holders and
Optionees, including the Proxy Statement/Prospectus, are referred to herein as
the "Registration Statement").
(b) United shall furnish information concerning United and the
Merger as is necessary in order to cause the Joint Proxy Statement/Prospectus,
insofar as it relates to United and the Merger, to comply with Section 5.6(a)
hereof. United agrees promptly to advise Vista if at any time prior to the Vista
stockholder meeting referred to in Section 5.7 hereof, any information provided
by United in the Joint Proxy Statement/Prospectus becomes incorrect or
incomplete in any material respect and to provide Vista with the information
needed to correct such inaccuracy or omission. United shall furnish Vista with
29
such supplemental information as may be necessary in order to cause the Joint
Proxy Statement/Prospectus, insofar as it relates to United and the Merger, to
comply with Section 5.6(a) after the mailing thereof to Vista stockholders and
United stockholders.
(c) Vista shall furnish United with such information
concerning Vista and the Bank as is necessary in order to cause the Joint Proxy
Statement/Prospectus, insofar as it relates to such corporations, to comply with
Section 5.6(a) hereof. Vista agrees promptly to advise United if, at any time
prior to either of the meetings referred to in Section 5.6(a) hereof,
information provided by Vista in the Joint Proxy Statement/Prospectus becomes
incorrect or incomplete in any material respect and to provide United with the
information needed to correct such inaccuracy or omission. Vista shall furnish
United with such supplemental information as may be necessary in order to cause
the Joint Proxy Statement/Prospectus, insofar as it relates to Vista and the
Bank, to comply with Section 5.6(a) after the mailing thereof to Vista
stockholders and United stockholders.
(d) United shall promptly make such filings as are necessary
in connection with the offering of the United Common Stock pursuant to the
Merger with applicable state securities agencies and shall use all reasonable
efforts to qualify the offering of the United Common Stock under applicable
state securities laws at the earliest practicable date. Vista shall promptly
furnish United with such information regarding the Vista stockholders as United
requires to enable it to determine what filings are required hereunder. Vista
authorizes United to utilize in such filings the information concerning Vista
and the Bank provided to United in connection with, or contained in, the Joint
Proxy Statement/Prospectus. United shall furnish Vista with drafts of all such
filings, as well as filings with the SEC and all regulatory filings in
connection with the Merger, shall provide Vista with the opportunity to comment
thereon, and shall keep Vista advised of the status thereof. United shall as
promptly as practicable file the Registration Statement containing the Joint
Proxy Statement/Prospectus with the SEC, and each of United and Vista shall
promptly notify the other of all communications, oral or written, with the SEC
concerning the Registration Statement and the Joint Proxy Statement/Prospectus.
(e) United shall cause the United Common Stock to be issued in
connection with the Merger to be listed on the NASDAQ/NMS.
(f) The parties hereto will cooperate with each other and use
all reasonable efforts to prepare all necessary documentation, to effect all
necessary filings and to obtain all necessary permits, consents, waivers,
approvals and authorizations of all third parties and governmental bodies
necessary to consummate the transactions contemplated by this Agreement as soon
as possible, including, without limitation, those required by the OCC, the
Commissioner, the State of New Jersey, the Pennsylvania Department of Banking,
the FDIC and the FRB. The parties shall each have the right to review in advance
(and shall do so promptly) all information relating to the other, as the case
may be, and any of their respective subsidiaries, which appears in any filing
made with, or written material submitted to, any third party or governmental
body in connection with the transactions contemplated by this Agreement. The
parties hereto shall use all reasonable efforts to file for approval or waiver
by the appropriate bank regulatory agencies within 60 days of the date hereof.
(g) Each of the parties will promptly furnish each other with
copies of written communications received by them or any of their respective
subsidiaries from, or delivered by any of the foregoing to, any governmental
body in respect of the transactions contemplated hereby.
30
(h) Vista acknowledges that United is in or may be in the
process of acquiring other banks and financial institutions and that in
connection with such acquisitions, information concerning Vista may be required
to be included in the registration statements, if any, for the sale of
securities of United or in SEC reports in connection with such acquisitions.
Vista agrees to provide United with any information, certificates, documents or
other materials about Vista as are reasonably necessary to be included in such
other SEC reports or registration statements, including registration statements
which may be filed by United prior to the Effective Time. Vista shall use its
reasonable efforts to cause its attorneys and accountants to provide United and
any underwriters for United with any consents, comfort letters, opinion letters,
reports or information which are necessary to complete the registration
statements and applications for any such acquisition or issuance of securities.
United shall reimburse Vista for reasonable expenses thus incurred by Vista
should this Agreement be terminated for any reason. United shall not file with
the SEC any registration statement or amendment thereto or supplement thereof
containing information regarding Vista unless Vista shall have consented in
writing to such filing, which consent shall not be unreasonably delayed or
withheld.
(i) Between the date of this Agreement and the Effective Time,
Vista shall cooperate with United to be in a position as of the Effective Time
to reasonably conform Vista's policies and procedures regarding applicable
regulatory matters to those of United as United may reasonably identify to Vista
from time to time.
5.7. Approval of Stockholders.
(a) Vista will (i) take all steps reasonably necessary duly to
call, give notice of, convene and hold a meeting of the stockholders of Vista as
soon as reasonably practicable for the purpose of securing the approval by such
stockholders of this Agreement, (ii) subject to the fiduciary responsibilities
of the Board of Directors of Vista to the stockholders of Vista, recommend to
the stockholders of Vista the approval of this Agreement and the transactions
contemplated hereby and use all reasonable efforts to obtain, as promptly as
practicable, such approvals, and (iii) cooperate and consult with United with
respect to each of the foregoing matters. In connection therewith, Vista will
use reasonable efforts to cause each director of Vista to agree, (x) to vote in
favor of the Merger, and (y) take such action as is necessary or is reasonably
required by United to consummate the Merger.
(b) United will (i) take all steps reasonably necessary to
duly call, give notice of, convene and hold a meeting of the stockholders of
United as soon as reasonably practicable for the purpose of securing the
approval by such stockholders of this Agreement, (ii) subject to the fiduciary
responsibilities of the Board of Directors of United to the stockholders of
United, recommend to the stockholders of United the approval of this Agreement
and the transactions contemplated hereby and use all reasonable efforts to
obtain, as promptly as practicable, such approvals, and (iii) cooperate and
consult with Vista with respect to each of the foregoing matters. In connection
therewith, United will use reasonable efforts to cause each director of United
to agree, (x) to vote in favor of the Merger, and (y) take such action as is
necessary or is reasonably required by Vista to consummate the Merger.
5.8. Further Assurances. Subject to the terms and conditions herein
provided, each of the parties hereto agrees to use all reasonable efforts to
take, or cause to be taken, all actions and to do, or cause to be done, all
things reasonably necessary, proper or advisable under applicable laws and
regulations to satisfy the conditions to Closing and to consummate and make
effective the transactions contemplated by this Agreement, including, without
31
limitation, using reasonable efforts to lift or rescind any injunction or
restraining order or other order adversely affecting the ability of the parties
to consummate the transactions contemplated by this Agreement and using all
reasonable efforts to prevent the breach of any representation, warranty,
covenant or agreement of such party contained or referred to in this Agreement
and to promptly remedy the same. Nothing in this section shall be construed to
require any party to participate in any threatened or actual Legal Proceedings
(other than Legal Proceedings to which it is otherwise a party or subject or
threatened to be made a party or subject) in connection with consummation of the
transactions contemplated by this Agreement unless such party shall consent in
advance and in writing to such participation and the other party agrees to
reimburse and indemnify such party for and against any and all costs and damages
related thereto.
5.9. Public Announcements. The parties hereto shall cooperate with
each other, and obtain each other's prior approval, in the development and
distribution of all news releases and other public disclosures with respect to
this Agreement or any of the transactions contemplated hereby, except as may be
otherwise required by law or regulation or as to which the party releasing such
information has used all reasonable efforts to discuss with the other party in
advance.
5.10. Failure to Fulfill Conditions. In the event that United or Vista
determines that a material condition to its obligation to consummate the
transactions contemplated hereby cannot be fulfilled on or prior to September
30, 2002 (the "Cutoff Date") and that it will not waive that condition, it will
promptly notify the other party. Except for any acquisition or merger
discussions United may enter into with other parties, Vista and United will
promptly inform the other of any facts applicable to Vista or United,
respectively, or their respective directors or officers, that would be likely to
prevent or materially delay approval of the Merger by any governmental authority
or which would otherwise prevent or materially delay completion of the Merger.
5.11. Disclosure Supplements. From time to time prior to the Effective
Time, each party hereto will promptly supplement or amend (by written notice to
the other) its respective Disclosure Schedules delivered pursuant hereto with
respect to any matter hereafter arising which, if existing, occurring or known
at the date of this Agreement, would have been required to be set forth or
described in such Schedules or which is necessary to correct any information in
such Schedules which has been rendered materially inaccurate thereby. For the
purpose of determining satisfaction of the conditions set forth in Article VI,
no supplement or amendment to such Schedules shall correct or cure any warranty
which was untrue when made, but supplements or amendments may be used to
disclose subsequent facts or events to maintain the truthfulness of any
warranty.
5.12. Transaction Expenses of Vista.
(a) To the extent not already done, Vista shall promptly, but
in any event within 30 days after the execution of this Agreement, ask all of
its attorneys and other professionals to render current and correct invoices for
all unbilled time and disbursements, and request that its professionals render
monthly invoices within 30 days after the end of each month. Vista shall accrue
and/or pay all of such amounts as soon as possible.
(b) United and Vista shall jointly make all arrangements with
respect to the printing and mailing of the Joint Proxy Statement/Prospectus.
32
5.13. Closing. The parties hereto shall cooperate and use
reasonable efforts to try to cause the Effective Time to occur during March,
2002.
5.14. Indemnification.
(a) For a period of six years after the Effective Time, United
shall indemnify, defend and hold harmless each person who is now, or has been at
any time prior to the date hereof or who becomes prior to the Effective Time, a
director or officer of Vista or the Bank (collectively, the "Indemnitees")
against any and all claims, damages, liabilities, losses, costs, charges,
expenses (including, without limitation, reasonable costs of investigation, and
the reasonable fees and disbursements of legal counsel and other advisers and
experts as incurred), judgments, fines, penalties and amounts paid in
settlement, asserted against, incurred by or imposed upon any Indemnitee by
reason of the fact that he or she is or was a director or officer of Vista or
the Bank or acted as a director or officer of a third party at the written
request of Vista or the Bank, in connection with, arising out of or relating to
any threatened, pending or completed claim, action, suit or proceeding (whether
civil, criminal, administrative or investigative), including, without
limitation, any and all claims, actions, suits, proceedings or investigations by
or on behalf of or in the right of or against Vista or the Bank or any of their
respective affiliates, or by any former or present stockholder of Vista or the
Bank (each a "Claim" and collectively, "Claims"), including, without limitation,
any Claim which is based upon, arises out of or in any way relates to the
Merger, the Joint Proxy Statement/Prospectus, this Agreement, any of the
transactions contemplated by this Agreement, the Indemnitee's service as a
member of the Board of Directors of Vista or the Bank or any committee of such
board, the events leading up to the execution of this Agreement, any statement,
announcement, recommendation or solicitation made in connection therewith or
related thereto (or the absence of any of the foregoing) and any breach of any
duty in connection with any of the foregoing, in each case to the fullest extent
which Vista or the Bank, as the case may be, would have been permitted under any
applicable law and its Certificate of Incorporation and By-Laws had the Merger
not occurred (and United shall also advance expenses as incurred to the fullest
extent so permitted).
(b) From and after the Effective Time, United shall assume and
honor any obligation of Vista or the Bank immediately prior to the Effective
Time with respect to the indemnification of the Indemnitees arising out of the
Certificate of Incorporation or By-Laws of Vista or the Bank or arising out of
any written indemnification agreements between Vista or the Bank and such
persons disclosed in the Vista Disclosure Schedule, as if such obligations were
pursuant to a contract or arrangement between United and such Indemnitees,
including the obligation to advance expenses pursuant to Vista's Certificate of
Incorporation and Bylaws.
(c) In the event United or any of its successors or assigns
(i) reorganizes or consolidates with or merges into or enters into another
business combination transaction with any other person or entity and is not the
resulting, continuing or surviving corporation or entity of such consolidation,
merger or transaction, or (ii) liquidates, dissolves or transfers all or
substantially all of its properties and assets to any person or entity, then,
and in each such case, proper provision shall be made so that the successors and
assigns of United assume the obligations set forth in this Section 5.14.
(d) United shall cause Vista's and the Bank's officers and
directors to be covered, for a period of six years after the Effective Time,
under (i) United's then current officers' and directors' liability insurance
33
policy or (ii) an extension of Vista's or the Bank's existing officers' and
directors' liability insurance policy. However, United shall only be required to
insure such persons upon terms and for coverages substantially similar to
Vista's or the Bank's existing officers' and directors' liability insurance, as
the case may be and, provided further, that in no event shall United be
obligated to expend more than 125% of the amount of the annual premium expended
by Vista as of the Effective Time to maintain or procure such coverage.
(e) Any Indemnitee wishing to claim indemnification under this
Section 5.14 shall promptly notify United upon learning of any Claim, but the
failure to so notify shall not relieve United of any liability it may have to
such Indemnitee if such failure does not materially prejudice United. In the
event of any Claim (whether arising before or after the Effective Time) as to
which indemnification under this Section 5.14 is applicable, (x) United shall
have the right to assume the defense thereof and United shall not be liable to
such Indemnitees for any legal expenses of other counsel or any other expenses
subsequently incurred by such Indemnitee in connection with the defense thereof,
except that if United elects not to assume such defense, or counsel for the
Indemnitees advises that there are issues which raise conflicts of interest
between United and the Indemnitees, the Indemnitees may retain counsel
satisfactory to them, and United shall pay the reasonable fees and expenses of
such counsel for the Indemnitees as statements therefor are received; provided,
however, that United shall be obligated pursuant to this Section 5.14(e) to pay
for only one firm of counsel for all Indemnitees in any jurisdiction with
respect to a matter unless the use of one counsel for multiple Indemnitees would
present such counsel with a conflict of interest that is not waivable by the
Indemnitees, and (y) the Indemnitees will cooperate in the defense of any such
matter. United shall not be liable for settlement of any claim, action or
proceeding hereunder unless such settlement is effected with its prior written
consent. Notwithstanding anything to the contrary in this Section 5.14, United
shall not have any obligation hereunder to any Indemnitee when and if a court of
competent jurisdiction shall ultimately determine, and such determination shall
have become final and nonappealable, that the indemnification of such Indemnitee
in the manner contemplated hereby is prohibited by applicable law or public
policy.
5.15. New United and UTB Directors. As of the Effective Time, United
shall cause its Board of Directors and the UTB Board of Directors to take action
to appoint to the Boards of Directors of United and UTB, respectively, at the
Effective Time, Xxxxxxx Xxxxxxx, Xxxxxx X. Xxxxx, and one other current Vista
director who shall be chosen by United. Such persons will serve on separate
classes of the Board of Directors of United.
5.16. Employment Matters. In connection with the Merger, United and
Vista will deal with employment and severance contracts and arrangements with
officers and employees of Vista and the Bank in the manner set forth in Section
5.16 of the Vista Disclosure Schedule.
5.17. Tax-Free Reorganization Treatment. Neither United nor Vista
shall intentionally take, fail to take or cause to be taken or not be taken, any
action within its control, whether before or after the Effective Time, which
would disqualify the Merger as a "reorganization" within the meaning of Section
368(a) of the Code.
5.18. Vista Option Plan. From and after the Effective Time, each Vista
Option which is converted to an option to purchase United Common Stock under
Section 2.1(b) shall be administered, operated and interpreted by a committee
comprised of members of the Board of Directors of United appointed by the Board
34
of Directors of United (including one or more former directors of Vista). United
shall reserve for issuance the number of shares of United Common Stock necessary
to satisfy United's obligations. United shall also register, if not previously
registered pursuant to the 1933 Act, the shares authorized for issuance under
the Vista Options so converted.
5.19. Compliance with the Industrial Site Recovery Act. Vista, at its
sole cost and expense, shall use all reasonable efforts to obtain prior to the
Effective Time, with respect to each facility located in New Jersey owned or
operated by Vista or any Vista Subsidiary (each, a "Facility"), either: (a) a
Letter of Non-Applicability ("LNA") from the New Jersey Department of
Environmental Protection ("NJDEP") stating that the Facility is not an
"industrial establishment," as such term is defined under the Industrial Site
Recovery Act ("ISRA"); (b) a Remediation Agreement issued by the NJDEP pursuant
to ISRA authorizing the consummation of the transactions contemplated by this
Agreement; or (c) a Negative Declaration approval, Remedial Action Workplan
approval, No Further Action letter or other document or documents issued by the
NJDEP advising that the requirements of ISRA have been satisfied with respect to
the Facility. In the event Vista obtains a Remediation Agreement, Vista will
post or have posted an appropriate Remediation Funding Source or will have
obtained the NJDEP's approval to self-guaranty any Remediation Funding Source
required under any such Remediation Agreement.
5.20. Affiliates.
(a) Promptly, but in any event within 30 days, after the
execution and delivery of this Agreement, (i) Vista shall deliver to United a
letter identifying all persons who, to the knowledge of Vista, may be deemed to
be affiliates of Vista under Rule 145 of the 1933 Act, including, without
limitation, all directors and executive officers of Vista.
(b) Vista shall cause each director of Vista to, and Vista
shall use all reasonable efforts to cause each executive officer of Vista and
each other person who may be deemed an affiliate of Vista, (under either Rule
145 of the 1933 Act or the accounting treatment rules) to, execute and deliver
to United within 30 days after the execution and delivery of this Agreement, a
letter substantially in the form of Exhibit 5.20 hereto agreeing to be bound by
the restrictions of Rule 145.
ARTICLE VI
CLOSING CONDITIONS
6.1. Conditions of Each Party's Obligations Under this Agreement. The
respective obligations of each party under this Agreement to consummate the
Merger shall be subject to the satisfaction, or, where permissible under
applicable law, waiver at or prior to the Effective Time of the following
conditions:
(a) Approval of Vista Stockholders; SEC Registration. This
Agreement and the transactions contemplated hereby shall have been approved by
the requisite vote of the stockholders of Vista and the stockholders of United.
The Registration Statement shall have been declared effective by the SEC and
shall not be subject to a stop order or any threatened stop order, and the
issuance of the United Common Stock shall have been qualified in every state
where such qualification is required under the applicable state securities laws.
The United Common Stock to be issued in connection with the Merger, including
United Common Stock to be issued for the Vista Options, shall have been approved
for listing on the NASDAQ/NMS.
(b) Regulatory Filings. All necessary regulatory or
governmental approvals and consents (including without limitation any required
approval of the Commissioner, the Pennsylvania Department of Banking, the FDIC,
the OCC and any approval or waiver required by the FRB) required to consummate
the transactions contemplated hereby shall have been obtained without any term
or condition which would materially impair the value of Vista and the Bank,
taken as a whole, to United. All conditions required to be satisfied prior to
the Effective Time by the terms of such approvals and consents shall have been
satisfied; and all statutory waiting periods in respect thereof shall have
expired.
(c) Suits and Proceedings. No order, judgment or decree shall
be outstanding against a party hereto or a third party that would have the
effect of preventing completion of the Merger; no Legal Proceeding shall be
pending or threatened by any governmental body in which it is sought to restrain
or prohibit the Merger or the Bank Merger.
(d) Tax Free Exchange. United and Vista shall have received an
opinion, satisfactory to United and Vista, of Bourne, Xxxx & Xxxxxx, counsel for
United, issued in reliance on tax representation letters from United and Vista
that are customary and reasonable under the circumstances, to the effect that
the transactions contemplated hereby will result in a reorganization (as defined
in Section 368(a) of the Code), and accordingly no gain or loss will be
recognized for federal income tax purposes to United, Vista, UTB or the Bank or
to the stockholders of Vista who exchange their shares of Vista for United
Common Stock (except to the extent that cash is received for shares or in lieu
of fractional shares of United Common Stock).
6.2. Conditions to the Obligations of United Under this Agreement.
The obligations of United under this Agreement shall be further subject to the
satisfaction or waiver, at or prior to the Effective Time, of the following
conditions:
(a) Representations and Warranties; Performance of Obligations
of Vista and Bank. The representations and warranties of Vista contained in this
Agreement, other than representations and warranties which are expressly stated
to be made as of the date hereof or as of any other particular date, shall be
true and correct on the Closing Date as though made on and as of the Closing
Date. Vista shall have performed in all material respects the agreements,
covenants and obligations necessary to be performed by it prior to the Closing
Date. With respect to any representation or warranty which as of the Closing
Date has required a supplement or amendment to the Vista Disclosure Schedule to
render such representation or warranty true and correct as of the Closing Date,
the representation and warranty shall be deemed true and correct as of the
Closing Date only if (i) the information contained in the supplement or
amendment to the Disclosure Schedule related to events occurring following the
execution of this Agreement and (ii) the facts disclosed in such supplement or
amendment would not either alone, or together with any other supplements or
amendments to the Vista Disclosure Schedule, materially adversely effect the
representation as to which the supplement or amendment relates. In interpreting
this Section 6.2(a) and Section 7.1(d) hereof, no representation or warranty of
Vista shall be deemed untrue or incorrect, and Vista shall not be deemed to have
breached a representation or warranty, as a consequence of any fact, event or
circumstance unless such fact, event or circumstance, individually or taken
together with all other facts, events or circumstances inconsistent with any
36
representation or warranty of Vista contained in this Agreement has had or is
reasonably likely to have a material adverse effect on Vista and the Bank, taken
as a whole, from that disclosed by Vista on the date of this Agreement.
(b) Consents. United shall have received the written consents
of any person whose consent to the transactions contemplated hereby is required
under the applicable instrument.
(c) Opinion of Counsel. United shall have received an opinion
of counsel to Vista, dated the date of the Closing, in form and substance
reasonably satisfactory to United, covering the matters set forth on Schedule
6.2 hereto and any other matters reasonably requested by United.
(d) Bank Action. The Bank shall have taken all necessary
corporate action to effectuate the Bank Merger immediately following the
Effective Time.
(e) Certificates. Vista shall have furnished United with such
certificates of its officers or other documents to evidence fulfillment of the
conditions set forth in this Section 6.2 as United may reasonably request.
(f) Environmental Law Compliance. Vista shall have obtained,
with respect to each Facility, an LNA, a Remediation Agreement, a Negative
Declaration approval, a Remedial Action Workplan approval (in which event Vista
will post or have posted an appropriate Remediation Funding Source or will have
obtained the NJDEP's approval to self-guaranty any Remediation Funding Source
required under any such Remediation Agreement), a No Further Action letter or
other document or documents issued by the NJDEP advising that the requirements
of ISRA have been satisfied with respect to the Facility.
6.3. Conditions to the Obligations of Vista Under this Agreement. The
obligations of Vista under this Agreement shall be further subject to the
satisfaction or waiver, at or prior to the Effective Time, of the following
conditions:
(a) Representations and Warranties; Performance of Obligations
of United. The representations and warranties of United contained in this
Agreement, other than representations and warranties which are expressly stated
to be made as of the date hereof or as of any other particular date, shall be
true and correct in all material respects on the Closing Date as though made on
and as of the Closing Date. United shall have performed in all material
respects, the agreements, covenants and obligations to be performed by it prior
to the Closing Date. With respect to any representation or warranty which as of
the Closing Date has required a supplement or amendment to the United Disclosure
Schedule to render such representation or warranty true and correct as of the
Closing Date, the representation and warranty shall be deemed true and correct
as of the Closing Date only if (i) the information contained in the supplement
or amendment to the Disclosure Schedule related to events occurring following
the execution of this Agreement and (ii) the facts disclosed in such supplement
or amendment would not either alone, or together with any other supplements or
amendments to the United Disclosure Schedule, materially adversely effect the
representation as to which the supplement or amendment relates. In interpreting
this Section 6.3(a) and Section 7.1(e) hereof, no representation or warranty of
United shall be deemed untrue or incorrect, and United shall not be deemed to
have breached a representation or warranty, as a consequence of any fact, event
or circumstance unless such fact, event or circumstance, individually or taken
together with all other facts, events or circumstances inconsistent with any
37
representation or warranty of United contained in this Agreement has had or is
reasonably likely to have a material adverse effect on United and UTB, taken as
a whole, from that disclosed by United on the date of this Agreement.
(b) Opinion of Counsel to United. Vista shall have received an
opinion of counsel to United, dated the date of the Closing, in form and
substance reasonably satisfactory to Vista, covering the matters set forth on
Schedule 6.3 hereto and any other matter reasonably requested by Vista.
(c) Fairness Opinion. Vista shall have received an opinion
from Broker as of the date of this Agreement and the date the Joint Proxy
Statement/Prospectus is mailed to Vista's stockholders, with respect to the
fairness, from a financial point of view, of the Exchange Ratio to the
stockholders of Vista in the Merger.
(d) Vista Directors. Each of United and UTB shall have taken
all action necessary to appoint three current Vista directors to its Board of
Directors as specified in Section 5.15.
(e) Certificates. United shall have furnished Vista with such
certificates of its officers or others and such other documents to evidence
fulfillment of the conditions set forth in this Section 6.3 as Vista may
reasonably request.
(f) UTB Action. UTB shall have taken all necessary corporate
action to effectuate the Bank Merger immediately following the Effective Time.
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
7.1. Termination. This Agreement may be terminated prior to the
Effective Time, whether before or after approval of this Agreement by the
stockholders of Vista:
(a) By mutual written consent of the parties hereto.
(b) By United or Vista (i) if the Effective Time shall not
have occurred on or prior to the Cutoff Date or (ii) if a vote of the
stockholders of Vista is taken and such stockholders fail to approve this
Agreement at the meeting (or any adjournment thereof) held for such purpose, or
(iii) if a vote of the stockholders of United is taken and such stockholders
fail to approve this Agreement at the meeting (or any adjournment thereof) held
for such purpose, unless in each case the failure of such occurrence shall be
due to the failure of the party seeking to terminate this Agreement to perform
or observe its agreements set forth herein to be performed or observed by such
party (or, in the case of Vista, to be performed or observed by the directors of
Vista) at or before the Effective Time.
(c) By United or Vista upon written notice to the other if any
application for regulatory or governmental approval necessary to consummate the
Merger and the other transactions contemplated hereby shall have been denied or
withdrawn at the request or recommendation of the applicable regulatory agency
or governmental authority or by United upon written notice to Vista if any such
application is approved with conditions which materially impair the value of
Vista and the Bank, taken as a whole, to United.
38
(d) By United if (i) there shall have occurred a material
adverse change in the business, operations, assets, or financial condition of
Vista or the Bank, taken as a whole, from that disclosed by Vista on the date of
this Agreement; or (ii) there was a material breach in any representation,
warranty, covenant, agreement or obligation of Vista hereunder.
(e) By Vista, if (i) there shall have occurred a material
adverse change in the business, operations, assets or financial condition of
United or UTB from that disclosed by United on the date of this Agreement; or
(ii) there was a material breach in any representation, warranty, covenant,
agreement or obligation of United hereunder.
(f) By United or Vista if any condition to Closing specified
under Article VI hereof applicable to such party cannot reasonably be met on or
before the Cutoff Date after giving the other party a reasonable opportunity to
cure any such condition.
(g) By Vista, if (either before or after the approval of this
Agreement by the stockholders of Vista) its Board of Directors so determines by
a vote of a majority of the members of its entire Board, at any time during the
three business day period commencing with (and including) the Determination
Date, if both of the following conditions are satisfied:
(x) the Average Pre-Closing Price of United Common
Stock on the Determination Date (the "Determination Price") is less than the
United Floor Price. The ("United Floor Price") is 80% of the United Average
Starting Date price. The "United Average Starting Date Price") is the average of
the high and low sale price of United Common Stock (i.e., $24.24) on November
14, 2001 (the "Starting Date"), as the same shall be adjusted to reflect any
Capital Change; and
(y) (i) the quotient obtained by dividing the
Determination Price by the United Average Starting Date Price (the "United
Ratio") is less than (ii) 80% of the quotient obtained by dividing the number
calculated using the index of financial institutions set forth on Exhibit B
hereto (the "Index Price") as of the close of business on the Determination Date
by the Index Price as of the close of business on the Starting Date (such number
being referred to herein as the "Index Ratio").
Notwithstanding the foregoing, if Vista elects to exercise its
termination right pursuant to subsection (g), it shall give prompt written
notice to United (provided that such notice of election to terminate may be
withdrawn at any time within the aforementioned three business day period).
During the two business day period commencing with its receipt of such notice,
United shall have the option of increasing the consideration to be received by
the holders of Vista Common Stock hereunder by increasing the Exchange Ratio to
equal the lesser of (i) a number (rounded to four decimals) equal to a quotient,
the numerator of which is the United Floor Price multiplied by the Exchange
Ratio (as then in effect) and the denominator of which is the Determination
Price, and (ii) a number (rounded to four decimals) equal to a quotient, the
numerator of which is the Index Ratio multiplied by the Exchange Ratio (as then
in effect) and the denominator of which is the United Ratio. If United makes an
election contemplated by the preceding sentence, within such two business day
period, it shall give prompt written notice to Vista of such election and the
revised Exchange Ratio, whereupon no termination shall have occurred pursuant to
this subsection (g) and this Agreement shall remain in effect in accordance with
39
its terms (except as the Exchange Ratio shall have been so modified), and any
references in this Agreement to "Exchange Ratio" shall thereafter be deemed to
refer to the Exchange Ratio as adjusted pursuant to this subsection (g).
7.2. Effect of Termination. In the event of the termination and
abandonment of this Agreement by either United or Vista pursuant to Section 7.1,
this Agreement shall forthwith become void and have no effect, without any
liability on the part of any party or its officers, directors or stockholders,
except that Sections 5.5(b) and 8.1 hereof shall have continuing effect as set
forth therein. Nothing contained herein, however, shall relieve any party from
any liability for any breach of this Agreement.
7.3. Amendment. This Agreement may be amended by mutual action taken
by the parties hereto at any time before or after adoption of this Agreement by
the stockholders of Vista and, if required, by the stockholders of United, but,
after any such adoption, no amendment shall be made which, under applicable New
Jersey law and NASDAQ listing rules, cannot be made without the approval of the
stockholders of Vista or the stockholders of United, as the case may be, without
obtaining such approval. This Agreement may not be amended except by an
instrument in writing signed on behalf of United and Vista.
7.4. Extension; Waiver. The parties may, at any time prior to the
Effective Time of the Merger, (i) extend the time for the performance of any of
the obligations or other acts of the other parties hereto; (ii) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant thereto; or (iii) waive compliance with any of the
agreements or conditions contained herein. Any agreement on the part of any
party to any such extension or waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party against which the waiver is
sought to be enforced.
ARTICLE VIII
MISCELLANEOUS
8.1. Expenses. All costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby (including legal,
accounting and investment banking fees and expenses) shall be borne by the party
incurring such costs and expenses, except that the cost of printing and mailing
the Joint Proxy Statement/Prospectus shall be borne equally by the parties
hereto if the transaction is terminated.
8.2. Notices. All notices or other communications which are required
or permitted hereunder shall be in writing and sufficient if delivered
personally or sent by telecopier with confirming copy sent the same day by
registered or certified mail, postage prepaid, as follows:
(a) If to United, to:
United National Bancorp
0000 Xxxxx 00 Xxxx, X.X. Xxx 0000
Xxxxxxxxxxx, XX 00000-0000
Attn.: Xxxxxx X. Xxxxxx, Chairman,
President and Chief Executive Officer
40
With a copy to:
Bourne, Xxxx & Xxxxxx
Attn.: Xxxxxxx X. Xxxxxx, Esq.
000 Xxxxxxxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxx, XX 00000-0000
(b) If to Vista, to:
Vista Bancorp, Inc.
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attn.: Xxxxxxx Xxxxxxx, President
and Chief Executive Officer
With a copy to:
Xxxx Xxxxx, LLP
Attn: Xxxx X. Xxxxx, Esq.
0 Xxxxx 0xx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
or such other addresses as shall be furnished in writing by any party, and any
such notice or communications shall be deemed to have been given as of the date
so delivered or telecopied and mailed.
8.3. Parties in Interest. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns. Nothing in this Agreement is intended to confer,
expressly or by implication, upon any other person any rights or remedies under
or by reason of this Agreement, except for the indemnitees covered by Section
5.14 hereof. No assignment of this Agreement may be made except upon the written
consent of the other parties hereto.
8.4. Entire Agreement. This Agreement, the Disclosure Schedules
hereto and the other documents, agreements and instruments executed and
delivered pursuant to or in connection with this Agreement, contain the entire
agreement between the parties hereto with respect to the transactions
contemplated by this Agreement and supersede all prior negotiations,
arrangements or understandings, written or oral, with respect thereto; provided,
however, that if this Agreement is terminated, the terms of Section 5.5(b) and
(c) and the terms of the Confidentiality Agreement between United and Vista
dated September 10, 2001 shall remain in effect. If any provision of this
Agreement is found invalid, it shall be considered deleted and shall not
invalidate the remaining provisions.
8.5. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
each of which shall be deemed an original.
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8.6. Governing Law. This Agreement shall be governed by the laws of
the State of New Jersey, without giving effect to the principles of conflicts of
laws thereof.
8.7. Descriptive Headings. The descriptive headings of this Agreement
are for convenience only and shall not control or affect the meaning or
construction of any provision of this Agreement.
8.8. Survival. All representations, warranties and, except to the
extent specifically provided otherwise herein, agreements and covenants, other
than those agreements and covenants set forth in Section 5.14 which shall
survive the Merger, shall terminate as of the Effective Time.
8.9. Knowledge. Representations made herein which are qualified by
the phrase to the best of Vista's knowledge or similar phrases refer as of the
date hereof to the best knowledge of the Chief Executive Officer and the Chief
Lending Officer of Vista and thereafter refer to the best knowledge of any
senior officer of Vista or any Vista subsidiary. Representations made herein
which are qualified by the phrase to the best of United's knowledge or similar
phrases refer as of the date hereof to the best knowledge of the Chief Executive
Officer, the Executive Vice President/Legal and the Chief Financial Officer of
United and thereafter refer to the best knowledge of any senior officer of
United or any United subsidiary.
IN WITNESS WHEREOF, United, UTB, the Bank and Vista have caused this
Agreement to be executed by their duly authorized officers as of the day and
year first above written.
ATTEST: UNITED NATIONAL BANCORP
/s/ XXXXX X. XXXXX, XX. By: /s/ XXXXXX X. XXXXXX
----------------------------------- -----------------------------------
Xxxxx X. Xxxxx, Xx., Secretary Xxxxxx X. Xxxxxx, Chairman, President
and Chief Executive Officer
ATTEST: VISTA BANCORP, INC.
/s/ XXXX X. XXXXXXX By: /s/ XXXXXXX XXXXXXX
----------------------------------- -----------------------------------
Xxxx X. Xxxxxxx, Corporate Secretary Xxxxxxx Xxxxxxx,
President and Chief Executive Officer
ATTEST: UNITEDTRUST BANK
/s/ XXXXX X. XXXXX By: /s/ XXXXX X. XXXXX
----------------------------------- -----------------------------------
Xxxxx X. Xxxxx, Xx., Secretary Xxxxxx X. Xxxxxx, Chairman
and Chief Executive Officer
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ATTEST: VISTA BANK, N.A.
/s/ XXXX X. XXXXXXX By: /s/ XXXXXXX XXXXXXX
----------------------------------- -----------------------------------
Xxxx X. Xxxxxxx, Secretary to the Xxxxxxx Xxxxxxx, Chairman, President
Board and Chief Executive Officer
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