EXHIBIT 2.2
FORM OF
SHAREHOLDER AGREEMENT
SHAREHOLDER AGREEMENT (the "Agreement"), dated as of May 19,
2003, among __________________, a shareholder ("Shareholder") of the United
Savings and Loan Bank, a Washington-chartered savings and loan association
("United Savings"), Washington Federal Savings and Loan Association, a federally
chartered savings and loan association ("Washington Federal Savings"), and
Washington Federal, Inc., a Washington corporation ("Parent"). All terms used
herein and not defined herein shall have the meanings assigned thereto in the
Merger Agreement (defined below).
WHEREAS, Parent, Washington Federal Savings and United Savings
are entering into an Agreement and Plan of Merger, dated as of the date hereof
(the "Merger Agreement"), pursuant to which United Savings will merge with and
into Washington Federal Savings on the terms and conditions set forth therein
(the "Merger") and, in connection therewith, outstanding shares of United
Savings Common Stock will be converted into shares of Parent Common Stock and/or
cash in the manner set forth therein; and
WHEREAS, Shareholder owns the shares of United Savings Common
Stock identified on Exhibit I hereto (such shares, together with all shares of
United Savings Common Stock subsequently acquired by Shareholder during the term
of this Agreement, being referred to as the "Shares"); and
WHEREAS, in order to induce Parent and Washington Federal
Savings to enter into the Merger Agreement, Shareholder, solely in such
Shareholder's capacity as a shareholder of United Savings and not in any other
capacity, has agreed to enter into and perform this Agreement.
NOW, THEREFORE, for good and valuable consideration, the
receipt, sufficiency and adequacy of which are hereby acknowledged, the parties
hereto agree as follows:
2. Agreement to Vote Shares. Shareholder agrees that at any
meeting of the stockholders of United Savings, or in connection with any written
consent of the stockholders of United Savings, Shareholder shall:
(i) appear at each such meeting or otherwise cause the
Shares to be counted as present thereat for purposes of calculating a quorum;
and
(ii) vote (or cause to be voted), in person or by proxy,
or deliver a written consent (or cause a consent to be delivered) covering, all
the Shares (whether acquired heretofore or hereafter) that are beneficially
owned by Shareholder or as to which Shareholder has, directly or indirectly, the
right to vote or direct the voting, (x) in favor of adoption and approval of the
Merger Agreement and the Merger; (y) against any action or agreement that would
result in a breach of any covenant, representation or warranty or any other
obligation or agreement of United Savings contained in the Merger Agreement or
of Shareholder contained in this
1
Agreement; and (z) against any Acquisition Proposal or any other action,
agreement or transaction that is intended, or could reasonably be expected, to
materially impede, interfere or be inconsistent with, delay, postpone,
discourage or materially and adversely affect consummation of the Merger or this
Agreement.
2. No Transfers. Prior to the United Savings Meeting,
Shareholder agrees not to, directly or indirectly, sell transfer, pledge, assign
or otherwise dispose of, or enter into any contract option, commitment or other
arrangement or understanding with respect to the sale, transfer, pledge,
assignment or other disposition of, any of the Shares. In the case of any
transfer by operation of law, this Agreement shall be binding upon and inure to
the transferee(s). Any transfer or other disposition in violation of the terms
of this Section 2 shall be null and void.
3. Representations and Warranties of Shareholder. Shareholder
represents and warrants to and agrees with Parent and Washington Federal Savings
as follows:
A. Capacity. Shareholder has all requisite
capacity and authority to enter into and perform his, her or its
obligations under this Agreement.
B. Binding Agreement. This Agreement
constitutes the valid and legally binding obligation of Shareholder,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
C. Non-Contravention. The execution and
delivery of this Agreement by Shareholder does not, and the performance
by Shareholder of his, her or its obligations hereunder and the
consummation by Shareholder of the transactions contemplated hereby
will not, violate or conflict with, or constitute a default under, any
agreement, instrument, contract or other obligation or any order,
arbitration award, judgment or decree to which Shareholder is a party
or by which Shareholder is bound, or any statute, rule or regulation to
which Shareholder is subject or, in the event that Shareholder is a
corporation, partnership, trust or other entity, any charter, bylaw or
other organizational document of Shareholder.
D. Ownership of Shares. Shareholder has good
title to all of the Shares as of the date hereof, and, except as set
forth on Exhibit I hereto, the Shares are so owned free and clear of
any liens, security interests, charges or other encumbrances.
4. Specific Performance and Remedies. Shareholder acknowledges
that it will be impossible to measure in money the damage to Parent and
Washington Federal Savings if Shareholder fails to comply with the obligations
imposed by this Agreement and that, in the event of any such failure, Parent and
Washington Federal Savings will not have an adequate remedy at law or in equity.
Accordingly, Shareholder agrees that injunctive relief or other equitable
remedy, in addition to remedies at law or in damages, is the appropriate remedy
for any such failure and will not oppose the granting of such relief on the
basis that Parent and Washington Federal Savings may have an adequate remedy at
law. Shareholder agrees that Shareholder will not seek, and agrees to waive any
requirement for, the securing or posting of a bond in connection with Parent's
or Washington Federal Savings' seeking or obtaining such
2
equitable relief. In addition, after discussing the matter with Shareholder,
Parent and Washington Federal Savings shall have the right to inform any third
party that Parent and Washington Federal Savings reasonably believe to be, or to
be contemplating, participating with Shareholder or receiving from Shareholder
assistance in violation of this Agreement, of the terms of this Agreement and of
the rights of Parent and Washington Federal Savings hereunder, and that
participation by any such persons with Shareholder in activities in violation of
Shareholder's agreement with Parent and Washington Federal Savings set forth in
this Agreement may give rise to claims by Parent and Washington Federal Savings
against such third party.
5. Term of Agreement; Termination.
A. The term of this Agreement shall commence on the date
hereof.
B. This Agreement shall terminate upon the date, if any,
of termination of the Merger Agreement in accordance with its terms. Upon such
termination, no party shall have any further obligations or liabilities
hereunder; provided, however, such termination shall not relieve any party from
liability for any willful breach of this Agreement prior to such termination.
C. If the Merger Agreement is not terminated in
accordance with its terms, this Agreement (except for the provisions of Sections
3 and 8, which shall survive the Effective Time) shall terminate upon the
Effective Time. Upon such termination, no party shall have any further
obligations or liabilities under this Agreement; provided, however, such
termination shall not relieve any party from liability for any willful breach of
such Section prior to such termination.
6. Entire Agreement. This Agreement supersedes all prior
agreements, written or oral, among the parties hereto with respect to the
subject matter hereof and contains the entire agreement among the parties with
respect to the subject matter hereof. This Agreement may not be amended,
supplemented or modified, and no provisions hereof may be modified or waived,
except by an instrument in writing signed by each party hereto. No waiver of any
provisions hereof by any party shall be deemed a waiver of any other provisions
hereof by any such party, nor shall any such waiver be deemed a continuing
waiver of any provision hereof by such party.
7. Notices. All notices, requests, claims, demands or other
communications hereunder shall be in writing and shall be deemed given when
delivered personally, upon receipt of a transmission confirmation if sent by
telecopy or like transmission and on the next business day when sent by a
reputable overnight courier service to the parties at the following addresses
(or at such other address for a party as shall be specified by like notice):
If to Parent or Washington Federal Savings:
Washington Federal, Inc.
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxx X. Xxxxxxxxx, President and
Chief Executive Officer
Fax: (000) 000-0000
3
With a copy to:
Xxxxxx Xxxx & Xxxxxx LLP
Tysons Corner
0000 Xxxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Xxxxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
If to Shareholder:
_______________________
_______________________
_______________________
With a copy to:
Xxxxxx & Xxxx PC
Pier 70
0000 Xxxxxxx Xxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
Xxxx Xxxxxxxx, Esq.
Fax: (000) 000-0000
Miscellaneous.
A. Severability. If any provision of this Agreement or
the application of such provision to any person or circumstances shall be held
invalid or unenforceable by a court of competent jurisdiction, such provision or
application shall be unenforceable only to the extent of such invalidity or
unenforceability, and the remainder of the provision held invalid or
unenforceable and the application of such provision to persons or circumstances,
other than the party as to which it is held invalid, and the remainder of this
Agreement, shall not be affected.
B. Capacity. The covenants contained herein shall apply
to Shareholder solely in his or her capacity as a shareholder of United Savings,
and no covenant contained herein shall apply to Shareholder in his or her
capacity as a director, officer or employee of United Savings or in any other
capacity. Nothing contained in this Agreement shall be deemed to apply to, or
limit in any manner, the obligations of the Shareholder to comply with his or
her fiduciary duties as a director, officer or employee of United Savings.
C. Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
4
D. Headings. All Section headings herein are for
convenience of reference only and are not part of this Agreement, and no
construction or reference shall be derived therefrom.
E. Choice of Law. This Agreement shall be deemed a
contract made under, and for all purposes shall be construed in accordance with,
the laws of the State of Washington, without reference to its conflicts of law
principles.
8. Attorney's Fees. The prevailing party or parties in any
litigation, arbitration, mediation, bankruptcy, insolvency or other proceeding
("Proceeding") relating to the enforcement or interpretation of this Agreement
may recover from the unsuccessful party or parties all fees and disbursements of
counsel (including expert witness and other consultants' fees and costs)
relating to or arising out of (a) the Proceeding (whether or not the Proceeding
proceeds to judgment), and (b) any post-judgment or post-award proceeding
including, without limitation, one to enforce or collect any judgment or award
resulting from the Proceeding. All such judgments and awards shall contain a
specific provision for the recovery of all such subsequently incurred costs,
expenses, and fees and disbursements of counsel.
[SIGNATURE PAGE TO FOLLOW]
5
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first written above.
WASHINGTON FEDERAL, INC.
By: ____________________________________
Name: Xxx X. Xxxxxxxxx
Title: President and Chief Executive Officer
WASHINGTON FEDERAL SAVINGS AND
LOAN ASSOCIATION
By: ____________________________
Name: Xxx X. Xxxxxxxxx
Title: President and Chief Executive Officer
SHAREHOLDER
__________________________________
(Signature)
6
EXHIBIT I
SHAREHOLDER AGREEMENT
Shares of
United Savings Common
Stock Beneficially Owned
(exclusive of
unexercised stock Options on United Savings
Name of Shareholder options) Common Stock
------------------- ------------------------- --------------------------
7
