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Exhibit 2.1
AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION ("Reorganization Agreement" or
"Agreement") dated as of July 9, 2000, by and among Premier National Bancorp
Inc. ("Seller"), a New York corporation having its principal executive office at
X.X. Xxx 000, Xxxxx 00 Xxxxxxxxxxxxx, XX 00000, M&T Bank Corporation
("Purchaser"), a New York corporation having its principal executive office at
One M&T Plaza, Buffalo, New York 14614, and Olympia Financial Corp. ("Merger
Sub"), a Delaware corporation and a direct wholly owned subsidiary of Purchaser
having its registered office at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx.
WITNESSETH
WHEREAS, the parties hereto desire that Seller shall be acquired by
Purchaser through the merger ("Merger") of Seller with and into Merger Sub, with
Merger Sub as the surviving corporation ("Surviving Corporation") pursuant to an
Agreement and Plan of Merger substantially in the form attached hereto as Annex
A ("Plan of Merger"); and
WHEREAS, following the consummation of the Merger, Premier National Bank
("Seller Bank"), a banking subsidiary of Seller, which shall be a wholly-owned
subsidiary of the Surviving Corporation following the Merger, shall merge with
and into Manufacturers and Traders Trust Company ("Purchaser Bank"), a bank
subsidiary of Purchaser ("Bank Merger"), pursuant to an Agreement and Plan of
Merger ("Bank Merger Agreement") in a form to be specified by Purchaser; and
WHEREAS, the parties hereto desire to provide for certain undertakings,
conditions, representations, warranties and covenants in connection with the
transactions contemplated hereby;
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties and covenants herein contained and intending to be
legally bound hereby, the parties hereto do hereby agree as follows:
ARTICLE 1.
DEFINITIONS
1.1 "Advisory Board" is defined in Section 4.15 hereof.
1.2 "Amex" shall mean the American Stock Exchange.
1.3 "Agreement" is defined in the preamble hereto.
1.4 "Bank Holding Company Act" shall mean the Bank Holding Company
Act of 1956, as amended.
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1.5 "Banking Board" shall mean the New York State Banking Board.
1.6 "Bank Merger" is defined in the recitals hereto.
1.7 "Bank Merger Agreement" is defined in the recitals hereto.
1.8 "Cash Consideration" is defined in the Plan of Merger.
1.9 "Claim" is defined in Section 4.11(g) hereof.
1.10 "Closing Date" is defined in Section 4.9 hereof.
1.11 "Code" shall mean the Internal Revenue Code of 1986, as amended.
1.12 "Commission" or "SEC" shall mean the Securities and Exchange
Commission.
1.13 "Confidentiality Agreement" is defined in Section 4.5 hereof.
1.14 "Covered Parties" is defined in Section 4.11(g) hereof.
1.15 "DPC Shares" is defined in the Plan of Merger.
1.16 ""Effective Date" is defined in Section 4.9 hereof.
1.17 "ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
1.18 "ERISA Affiliate" is defined in Section 2.13(a) hereof.
1.19 "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
1.20 "FDIA" shall mean the Federal Deposit Insurance Act.
1.21 "FDIC" shall mean the Federal Deposit Insurance Corporation.
1.22 "Federal Reserve Board" shall mean the Board of Governors of the
Federal Reserve System.
1.23 "Indemnified Parties" is defined in Section 4.11(f) hereof.
1.24 "Insurance Amount" is defined in Section 4.11(h) hereof.
1.25 "Intellectual Property" means domestic and foreign letters
patent, patents, patent applications, patent licenses, software licensed or
owned, know-how licenses, trade names, common law and other trademarks, service
marks, licenses of trademarks, trade names and/or service marks, trademark
registrations and applications, service xxxx registrations and applications and
copyright registrations and applications.
1.26 "XX Xxxxxx" is defined in Section 2.18 hereof.
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1.27 "KBW" is defined in Section 2.18 hereof.
1.28 "knowledge" and its correlative terms shall mean, with respect
to Seller or Purchaser, the knowledge of the executive officers of the Seller or
Purchaser, as the case may be, after due inquiry, with respect to matters within
the areas of responsibility of the respective executive officers.
1.29 "Material Adverse Effect" shall mean, with respect to Seller or
Purchaser, as the case may be, a material adverse effect on the business,
results of operations or financial condition of such party and the Subsidiaries
of the party taken as a whole or a material adverse effect on such party's
ability to consummate the transactions contemplated hereby; provided, however,
that in determining whether a Material Adverse Effect has occurred there shall
be excluded any effect on the referenced party the cause of which is (i) any
change in banking or similar laws, rules or regulations of general applicability
or interpretations thereof by courts or governmental authorities, (ii) any
change in generally accepted accounting principles or regulatory accounting
requirements applicable to banks or their holding companies generally, (iii)
general changes in conditions, including interest rates, in the banking industry
or in the global or United States or Northeast regional economy or financial
markets, with respect to clause (i), (ii) or (iii), to the extent that a change
does not materially affect the referenced party to a materially different extent
than other similarly situated banking organizations, and (iv) any action or
omission of Seller or Purchaser or any Subsidiary of either of them taken with
the prior written consent of Purchaser or Seller, as applicable, in
contemplation of the Merger.
1.30 "Merger" is defined in the recitals hereto.
1.31 "Merger Consideration" is defined in the Plan of Merger.
1.32 "Merger Sub" is defined in the preamble of this Agreement.
1.33 "NYSE" shall mean The New York Stock Exchange.
1.34 "OCC" shall mean the Office of the Comptroller of Currency.
1.35 "Option Agreement" shall mean the Stock Option Agreement dated
of even date herewith between Seller and Purchaser pursuant to which Seller will
grant Purchaser the right to purchase certain shares of Seller Common Stock.
1.36 "Plan of Merger" is defined in the recitals hereto.
1.37 "Previously Disclosed" shall mean disclosed prior to the
execution hereof in (i) an SEC Document filed with the SEC subsequent to January
1, 2000 and prior to the date hereof or (ii) a letter dated of even date
herewith from the party making such disclosure and delivered to the other party
prior to the execution hereof. Any information disclosed by one party to the
other for any purpose hereunder shall be deemed to be disclosed for all purposes
hereunder. The inclusion of any matter in information Previously Disclosed shall
not be deemed an admission or otherwise to imply that any such matter is
material for purposes of this Agreement.
1.38 "Previously Disclosed Individuals" is defined in Section 4.11(b)
hereof.
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1.39 "Proxy Statement" shall mean the proxy statement/prospectus (or
similar documents) together with any supplements thereto sent to the
shareholders of Seller to solicit their votes in connection with this Agreement
and the Plan of Merger.
1.40 "Purchaser" is defined in the preamble of this Agreement.
1.41 "Purchaser Bank" is defined in the recitals hereof.
1.42 "Purchaser Common Stock" is defined in Section 3.1 hereof.
1.43 "Purchaser Financial Statements" shall mean (i) the consolidated
balance sheets of Purchaser as of March 31, 2000 and as of December 31, 1999 and
1998 and the related consolidated statements of income, cash flows and changes
in shareholders' equity (including related notes, if any) for the three months
ended March 31, 2000 and each of the three years ended December 31, 1999, 1998
and 1997, respectively, as filed by Purchaser in SEC Documents and (ii) the
consolidated balance sheets of Purchaser and related consolidated statements of
income, cash flows and changes in shareholders' equity (including related notes,
if any) as filed by Purchaser in SEC Documents as of dates or with respect to
periods ended subsequent to March 31, 2000.
1.44 "Purchaser Plan" is defined in Section 3.10 hereof.
1.45 "Purchaser Preferred Stock" is defined in Section 3.1 hereof.
1.46 "Registration Statement" shall mean the registration statement
with respect to the Purchaser Common Stock to be issued in connection with the
Merger as declared effective by the Commission under the Securities Act and as
amended from time to time.
1.47 "Rights" shall mean warrants, options, rights, convertible
securities and other arrangements or commitments which obligate an entity to
issue or dispose of any of its capital stock, and stock appreciation rights,
performance units and other similar stock-based rights whether they obligate the
issuer thereof to issue stock or other securities or to pay cash.
1.48 "Reorganization Agreement" is defined in the recitals hereto.
1.49 "SEC Documents" shall mean all reports and registration
statements filed, or required to be filed, by a party hereto pursuant to the
Securities Laws.
1.50 "Securities Act" shall mean the Securities Act of 1933, as
amended.
1.51 "Securities Laws" shall mean the Securities Act; the Exchange
Act; the Investment Company Act of 1940, as amended; the Investment Advisers Act
of 1940, as amended; the Trust Indenture Act of 1939, as amended; and the rules
and regulations of the Commission promulgated thereunder.
1.52 "Seller" is defined in the preamble of this Agreement.
1.53 "Seller Bank" is defined in the recitals hereto.
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1.54 "Seller Common Stock" is defined in Section 2.1 hereof.
1.55 "Seller Employees" is defined in Section 4.11(a) hereof.
1.56 "Seller Financial Statements" shall mean (i) the consolidated
balance sheets of Seller as of March 31, 2000 and as of December 31, 1999 and
1998 and the related consolidated statements of income and expense, cash flows
and stockholders' equity (including related notes, if any) for the three months
ended March 31, 2000 and each of the three years ended December 31, 1999, 1998
and 1997, respectively, as filed by Seller in SEC Documents and (ii) the
consolidated balance sheets of Seller and related consolidated statements of
income and expense, cash flows and changes in stockholders' equity (including
related notes, if any) as filed by Seller in SEC Documents with respect to
periods ended subsequent to March 31, 2000.
1.57 "Seller Plans" is defined in Section 2.13(a) hereof.
1.58 "Seller Preferred Stock" is defined in Section 2.1 hereof.
1.59 "Seller Stock Option Plans" is defined in the Plan of Merger.
1.60 "Stock Consideration" is defined in the Plan of Merger.
1.61 "Subsidiary" or "Subsidiaries" shall mean with respect to any
party, any bank, corporation, partnership or other organization, whether
incorporated or unincorporated, which is consolidated with such party for
financial reporting purposes; provided, however, that "Subsidiary" or
"Subsidiaries" shall not include any subsidiary trust formed for the purpose of
issuing trust preferred or similar securities.
1.62 "Surviving Corporation" is defined in the recitals hereto.
1.63 "Takeover Laws" is defined in Section 2.28 hereof.
1.64 "Takeover Proposal" is defined in Section 4.7(b)(13) hereof.
1.65 "Tax," collectively, "Taxes" shall mean all taxes, however
denominated, including any interest, penalties, criminal sanctions or additions
to tax (including, without limitation, any underpayment penalties for
insufficient estimated tax payments) or other additional amounts that may become
payable in respect thereof (or in respect of a failure to file any Tax Return
when and as required), imposed by any federal, state, local or foreign
government or any agency or political subdivision of any such government, which
taxes shall include, without limiting the generality of the foregoing, all
income taxes, payroll and employment taxes, withholding taxes (including
withholding taxes in connection with amounts paid or owing to any employee,
independent contractor, creditor, stockholder or other person or entity),
unemployment insurance taxes, social security (or similar) taxes, sales and use
taxes, excise taxes, franchise taxes, gross receipts taxes, occupation taxes,
real and personal property taxes, stamp taxes, value added taxes, transfer
taxes, profits or windfall profits taxes, licenses in the nature of taxes,
estimated taxes, severance taxes, duties (custom and others), workers'
compensation taxes, premium taxes, environmental taxes (including taxes under
Section 59A of the Code), disability taxes,
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registration taxes, alternative or add-on minimum taxes, estimated taxes, and
other fees, assessments, charges or obligations of the same or of a similar
nature.
1.66 "Tax Return," collectively, "Tax Returns" shall mean all
returns, reports, estimates, information statements or other written
submissions, and any schedules or attachments thereto, required or permitted to
be filed pursuant to the statutes, rules and regulations of any federal, state,
local or foreign government Tax authority, including but not limited to,
original returns and filings, amended returns, claims for refunds, information
returns, ruling requests, administrative or judicial filings, accounting method
change requests, responses to revenue agents' reports (federal, state or local)
and settlement documents.
1.67 "Trust Account Shares" is defined in the Plan of Merger.
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES OF SELLER
Except as Previously Disclosed, Seller hereby represents and warrants to
Purchaser and Merger Sub as follows:
2.1. CAPITAL STRUCTURE OF SELLER
The authorized capital stock of Seller consists of (i) 5,000,000 shares
of preferred stock, par value $0.01 per share ("Seller Preferred Stock") none of
which is issued and outstanding and (ii) 50,000,000 shares of common stock, par
value $0.80 per share ("Seller Common Stock"), of which, as of July 7, 2000,
15,799,535 shares were issued and outstanding and 644,359 shares were held in
treasury, and since that date no shares have been issued other than on exercise
of Rights Previously Disclosed. As of the date hereof, no shares of Seller
Preferred Stock or Seller Common Stock are reserved for issuance, except as
Previously Disclosed and except for 3,144,107 shares of Seller Common Stock
reserved for issuance pursuant to the Option Agreement. Seller has Previously
Disclosed a list of all currently outstanding options for the purchase of Seller
Common Stock, the number of shares of Seller Common Stock subject to such
options, whether such options are vested or unvested, the vesting schedule for
unvested options and the vesting or other treatment of all unvested options in
the event of a change of control of Seller. All outstanding shares of Seller
Common Stock have been duly authorized and validly issued and are fully paid and
nonassessable. Seller does not have and is not bound by any Rights which are
authorized, issued or outstanding with respect to the capital stock of Seller
except (i) for the Option Agreement, (ii) as Previously Disclosed, and (iii) as
set forth above. None of the shares of Seller's capital stock has been issued in
violation of the preemptive rights of any person.
2.2. ORGANIZATION, STANDING AND AUTHORITY OF SELLER
Seller is a duly incorporated corporation, validly existing and in good
standing under the laws of the State of New York with full corporate power and
authority to carry on its business as now conducted and is duly licensed or
qualified to do business in the states of the United States and foreign
jurisdictions where its ownership or leasing of property or the conduct of its
business requires such qualification, except where the failure to have such
corporate power and authority
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or to be so licensed or qualified would not have a Material Adverse Effect on
Seller. Seller is registered as a bank holding company under the Bank Holding
Company Act.
2.3. OWNERSHIP OF SELLER SUBSIDIARIES; CAPITAL STRUCTURE OF SELLER
SUBSIDIARIES
As of the date hereof, Seller does not own, directly or indirectly, 5%
or more of the outstanding capital stock or other voting securities of any
corporation, bank or other organization except the Seller Subsidiaries as
Previously Disclosed. Seller has Previously Disclosed to Purchaser a list of all
of the Subsidiaries, including a summary description of each Subsidiary's
activities and the authority under which each Subsidiary is held by Seller or
Seller Bank, as the case may be. Except as Previously Disclosed, the outstanding
shares of capital stock or other equity interests of each Seller Subsidiary have
been duly authorized and validly issued and are fully paid and (except as
provided by applicable law) nonassessable and all such shares or equity
interests are directly or indirectly owned by Seller free and clear of all
liens, claims and encumbrances. No Seller Subsidiary has or is bound by any
Rights which are authorized, issued or outstanding with respect to the capital
stock or other equity interests of any Seller Subsidiary and, except as
Previously Disclosed, there are no agreements, understandings or commitments
relating to the right of Seller to vote or to dispose of said shares. None of
the shares of capital stock or other equity interests of any Seller Subsidiary
has been issued in violation of the preemptive rights of any person.
2.4. ORGANIZATION, STANDING AND AUTHORITY OF SELLER SUBSIDIARIES
Each Seller Subsidiary is a duly incorporated corporation, banking
association or other organization, validly existing and in good standing under
applicable laws, except where the failure to be duly incorporated, validly
existing and in good standing would not have a Material Adverse Effect on
Seller. Each Seller Subsidiary (i) has full power and authority to carry on its
business as now conducted, and (ii) is duly licensed or qualified to do business
in the states of the United States and foreign jurisdictions where its ownership
or leasing of property or the conduct of its business requires such licensing or
qualification, except where failure to have such corporate power and authority
or to be so licensed or qualified would not have a Material Adverse Effect on
Seller. Each Seller Subsidiary has all federal, state, local and foreign
governmental authorizations necessary for it to own or lease its properties and
assets and to carry on its business as it is now being conducted, except where
the failure to be so authorized would not have a Material Adverse Effect on
Seller. Seller Bank is a member in good standing of the Federal Home Loan Bank
of New York and owns the requisite amount of shares therein and is a qualified
seller and servicer for the Federal Home Loan Mortgage Corporation.
2.5. AUTHORIZED AND EFFECTIVE AGREEMENT
(a) Seller has all requisite corporate power and authority to
enter into and perform all of its obligations under this Reorganization
Agreement, the Plan of Merger and the Option Agreement. The execution and
delivery of this Reorganization Agreement, the Plan of Merger and the Option
Agreement and the consummation of the transactions contemplated hereby and
thereby have been duly and validly authorized by all necessary corporate action
in respect thereof on the part of Seller, except for the affirmative vote of the
holders of two thirds (2/3) of the outstanding shares of Seller Common Stock,
which is the only shareholder vote
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required to approve the Plan of Merger pursuant to the New York Business
Corporation Law and Seller's Second Amended and Restated Certificate of
Incorporation and Seller's Bylaws. The Board of Directors of Seller has directed
that this Agreement and the Plan of Merger be submitted to Seller's stockholders
for approval at a special meeting to be held as soon as practicable. The Board
of Directors of Seller has approved the Merger as contemplated by Section 8 of
Seller's Second Amended and Restated Certificate of Incorporation.
(b) Assuming the accuracy of the representation contained in
Section 3.5(b) hereof, this Reorganization Agreement and the Plan of Merger
constitute legal, valid and binding obligations of Seller, enforceable against
it in accordance with their respective terms, subject to bankruptcy, insolvency
and other laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(c) Neither the execution and delivery of this Reorganization
Agreement, the Plan of Merger or the Option Agreement, nor consummation of the
transactions contemplated hereby or thereby, nor compliance by Seller with any
of the provisions hereof or thereof shall (i) conflict with or result in a
breach of any provision of the articles or certificate of incorporation or
association, charter or bylaws of Seller or any Seller Subsidiary, (ii) assuming
the consents and approvals contemplated by Section 4.3 hereof and the consents
and approvals which are Previously Disclosed are duly obtained, constitute or
result in a breach of any term, condition or provision of, or constitute a
default under, or give rise to any right of termination, cancellation or
acceleration with respect to, or result in the creation of any lien, charge or
encumbrance upon any property or asset of Seller or any Seller Subsidiary
pursuant to, any note, bond, mortgage, indenture, license, agreement or other
instrument or obligation, or (iii) assuming the consents and approvals
contemplated by Section 4.3 hereof and the consents and approvals which are
Previously Disclosed are duly obtained, violate any order, writ, injunction,
decree, statute, rule or regulation applicable to Seller or any Seller
Subsidiary, except (in the case of clauses (ii) and (iii) above) for such
violations, rights, conflicts, breaches, creations or defaults which, either
individually or in the aggregate, would not have a Material Adverse Effect on
Seller.
(d) Other than (i) the filing of the Proxy Statement and the
Registration Statement with the Commission pursuant to the Securities Laws, (ii)
the filing of the Certificate of Merger and other appropriate merger documents
required by the Delaware General Corporation Law and the New York Business
Corporation Law and with their respective Secretaries of State, (iii) the filing
of appropriate documents with the relevant authorities of other states in which
the parties to the Bank Merger Agreement are qualified to do business, and (iv)
as contemplated by Section 4.3 hereof, no consent, approval or authorization of,
or declaration, notice, filing or registration with, any governmental or
regulatory authority, or any other person, is required to be made or obtained by
Seller or any Seller Subsidiary on or prior to the Closing Date in connection
with the execution, delivery and performance of this Agreement and the Plan of
Merger or the consummation of the transactions contemplated hereby or thereby,
except where the failure to obtain such consents would not have a Material
Adverse Effect on Seller. As of the date hereof, Seller is not aware of any
reason that the condition set forth in Section 5.1(b) of this Agreement,
including the proviso thereto, would not be satisfied.
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2.6. SEC DOCUMENTS; REGULATORY FILINGS
Seller has filed all SEC Documents required by the Securities Laws since
December 31, 1994 and such SEC Documents complied, as of their respective dates,
in all material respects with the Securities Laws. Seller and each Seller
Subsidiary has filed all reports required by statute or regulation to be filed
with any federal or state bank regulatory agency, except where the failure to so
file would not have a Material Adverse Effect on Seller, and such reports were
prepared in accordance with the applicable statutes, regulations and
instructions in existence as of the date of filing of such reports in all
material respects.
2.7. FINANCIAL STATEMENTS; BOOKS AND RECORDS; MINUTE BOOKS
The Seller Financial Statements filed by Seller in SEC Documents prior
to the date of this Agreement fairly present, and the Seller Financial
Statements filed by Seller after the date of this Agreement will fairly present,
the consolidated financial position of Seller and its consolidated Subsidiaries
as of the dates indicated and the consolidated income, changes in stockholders'
equity and cash flows of Seller and its consolidated Subsidiaries for the
periods then ended in conformity with generally accepted accounting principles
applicable to financial institutions applied on a consistent basis except as
disclosed therein and except, in the case of unaudited statements, as permitted
by Form 10-Q and subject to normal recurring year-end adjustments. The books and
records of Seller and each Seller Subsidiary fairly reflect in all material
respects the transactions to which it is a party or by which its properties are
subject or bound. Such books and records have been properly kept and maintained
and are in compliance with all applicable legal and accounting requirements in
all material respects. The minute books of Seller and each Seller Subsidiary
contain records which are accurate in all material respects of all corporate
actions of its shareholders and Board of Directors (including committees of its
Board of Directors).
2.8. MATERIAL ADVERSE CHANGE
Seller has not, on a consolidated basis, suffered any change in its
financial condition, results of operations or business since December 31, 1999
which individually or in the aggregate with any other such changes would
constitute a Material Adverse Effect with respect to Seller.
2.9. ABSENCE OF UNDISCLOSED LIABILITIES
Neither Seller nor any Seller Subsidiary has any liability (contingent
or otherwise), excluding contractually assumed contingencies, that is material
to Seller on a consolidated basis, or that, when combined with all similar
undisclosed liabilities, would be material to Seller on a consolidated basis,
except as disclosed in the Seller Financial Statements filed with the SEC prior
to the date hereof and except for liabilities incurred in the ordinary course of
business subsequent to December 31, 1999.
2.10. PROPERTIES
Seller and the Seller Subsidiaries have good and marketable title free
and clear of all liens, encumbrances, charges, defaults or equitable interests
to all of the properties and assets, real and personal, which, individually or
in the aggregate, are material to the business of Seller
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and its Subsidiaries taken as a whole, and which are reflected on the Seller
Financial Statements as of December 31, 1999 or acquired after such date, except
(i) liens for taxes not yet due and payable, (ii) pledges to secure deposits and
other liens incurred in the ordinary course of banking business, (iii) such
imperfections of title, easements and encumbrances, if any, as are not material
in character, amount or extent and (iv) dispositions and encumbrances for
adequate consideration in the ordinary course of business. All leases pursuant
to which Seller or any Seller Subsidiary, as lessee, leases real and personal
property which, individually or in the aggregate, are material to the business
of Seller and its Subsidiaries taken as a whole are valid and enforceable in
accordance with their respective terms except where the failure of such lease or
leases to be valid and enforceable would not, individually or in the aggregate,
have a Material Adverse Effect on Seller. All tangible property used in the
business of Seller and its Subsidiaries taken as a whole is in good condition,
reasonable wear and tear excepted, and is usable in the ordinary course of
business consistent with Seller's past practices.
2.11. LOANS
(a) Each loan reflected as an asset in the Seller Financial
Statements, except for loans repaid since that time, (i) is evidenced by notes,
agreements or other evidences of indebtedness which are true, genuine and what
they purport to be, (ii) to the extent secured, has been secured by valid liens
and security interests which have been perfected, and (iii) is the legal, valid
and binding obligation of the obligor named therein, enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent conveyance and
other laws of general applicability relating to or affecting creditors' rights
and to general equity principles, in each case other than loans as to which the
failure to satisfy the foregoing standards, individually or in the aggregate,
after taking into account reserves for loan losses, would not have a Material
Adverse Effect on Seller.
(b) The allowance for loan losses reflected on the Seller
Financial Statements, as of their respective dates, is in all material respects
consistent with the requirements of generally accepted accounting principles to
provide for reasonably anticipated losses with respect to Seller's loan
portfolio based upon information reasonably available to Seller at the time.
2.12. TAX MATTERS
(a) Seller and each Seller Subsidiary have timely filed, or have
timely requested filing extensions for, federal income tax returns for each year
through December 31, 1999 and have timely filed, or caused to be filed, or have
timely requested filing extensions for, all other Tax Returns required to be
filed with respect to Seller or any Seller Subsidiary, except where the failure
to file timely such federal income and other Tax Returns would not, in the
aggregate, have a Material Adverse Effect on Seller. All Taxes due by or on
behalf of Seller or any Seller Subsidiary have been paid or adequate reserves
have been established on the Seller Financial Statements for the payment of such
Taxes, except where any such failure to pay or establish adequate reserves would
not, in the aggregate, have a Material Adverse Effect on Seller. Neither Seller
nor any Seller Subsidiary will have any liability for any such Taxes in excess
of the amounts so paid or reserves or accruals so established except where such
liability would not have a Material Adverse Effect on Seller.
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(b) All Tax Returns filed by Seller and each Seller Subsidiary
are complete and accurate in all material respects. Neither Seller nor any
Seller Subsidiary is delinquent in the payment of any material Tax, and, except
as Previously Disclosed, none of them has requested any extension of time within
which to file any Tax Returns which have not since been filed. Except as
Previously Disclosed or as fully settled and paid or accrued on the Seller
Financial Statements, to Seller's knowledge, no material audit examination,
deficiency, adjustment, refund claim or litigation with respect to Tax Returns,
paid Taxes, unpaid Taxes or Tax attributes of Seller or any Seller Subsidiary
has been proposed, asserted or assessed (tentatively or otherwise). Except as
Previously Disclosed, there are currently no agreements in effect with respect
to Seller or any Seller Subsidiary to extend the period of limitations for the
assessment or collection of any material Tax.
(c) Neither the transactions contemplated hereby nor the
termination of the employment of any employees of Seller or any Seller
Subsidiary prior to or following consummation of the transactions contemplated
hereby will result in Seller or any Seller Subsidiary (or any successor thereof)
making or being required to make any "excess parachute payment" as that term is
defined in Section 280G of the Code.
(d) Except as Previously Disclosed, neither Seller nor any
Seller Subsidiary is a party to any agreement (other than an agreement
exclusively among Seller and the Seller Subsidiaries) providing for the
allocation or sharing of, or indemnification for, Taxes.
(e) Neither Seller nor any Seller Subsidiary is required to
include in income any adjustment in any taxable period ending after the date
hereof pursuant to Section 481(a) of the Code.
(f) Neither Seller nor any Seller Subsidiary has executed or
entered into any written agreement with any Tax authority conceding or agreeing
to any treatment of Taxes or Tax attributes, including, without limitation,
Internal Revenue Service Form 870 or Form 870-AD, closing agreement or special
closing agreement, affecting the Seller or any Seller Subsidiary pursuant to
Section 7121 of the Code or any predecessor provision thereof or any similar
provision of state, local or foreign law, which agreement would have a material
impact on the calculation of the Taxes of Purchaser or any Purchaser Subsidiary
after the Effective Date.
(g) For purposes of this Section 2.12 and Section 2.27, (i)
references to Seller and any Seller Subsidiary shall include predecessors
thereof and (ii) "Seller Subsidiary" shall include each Subsidiary (as defined
in Article 1 hereof) of Seller, and each corporation, partnership, limited
liability company, joint venture or other entity which Seller controls directly
or indirectly (through one or more intermediaries). For purposes of the previous
sentence, "control" means the possession, direct or indirect, of the power
either (1) to vote fifty percent (50%) or more of the voting interests of a
corporation, partnership, limited liability company, joint venture or other
entity, or (2) to direct or cause the direction of the management and policies
of a corporation, partnership, limited liability company, joint venture or other
entity, whether by contract or otherwise.
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2.13. EMPLOYEE BENEFIT PLANS
(a) A true and complete list of each material Seller Plan has
been Previously Disclosed. For purposes of this Section 2.13, the term "Seller
Plan" means each bonus, deferred compensation, incentive compensation, stock
purchase, stock option, severance pay, medical, life or other insurance,
profit-sharing, or pension plan, program, agreement or arrangement, and each
other employee benefit plan, program, agreement or arrangement, sponsored,
maintained or contributed to or required to be contributed to by Seller or by
any trade or business, whether or not incorporated, that together with Seller
would be deemed a "single employer" under Section 414 of the Code (an "ERISA
Affiliate") for the benefit of any employee or director or former employee or
former director of Seller or any ERISA Affiliate of Seller.
(b) With respect to each of the Seller Plans, Seller has made
available to Purchaser true and complete copies of each of the following
documents: (a) the Seller Plan and related documents (including all amendments
thereto); (b) the most recent annual reports, financial statements, and
actuarial reports, if any; (c) the most recent summary plan description,
together with each summary of material modifications, required under ERISA with
respect to such Seller Plan and all material communications relating to each
such Seller Plan; and (d) the most recent determination letter received from the
IRS with respect to each Seller Plan that is intended to be qualified under the
Code and all material communications to or from the IRS or any other
governmental or regulatory agency or authority relating to each Seller Plan.
(c) No liability under Title IV of ERISA has been incurred by
Seller or any ERISA Affiliate of Seller that has not been satisfied in full, and
no condition exists that presents a material risk to Seller or any ERISA
Affiliate of Seller of incurring a liability under such Title, other than
liability for premium payments to the Pension Benefit Guaranty Corporation,
which premiums have been or will be paid when due.
(d) Neither Seller nor, to the knowledge of Seller, any ERISA
Affiliate of Seller, nor any of the Seller Plans, nor, to the knowledge of
Seller, any trust created thereunder, nor any trustee or administrator thereof
has engaged in a prohibited transaction (within the meaning of Section 406 of
ERISA and Section 4975 of the Code) in connection with which Seller or any ERISA
Affiliate of Seller could reasonably be expected to, either directly or
indirectly, incur any material liability or material cost.
(e) Full payment has been made, or will be made in accordance
with Section 404(a)(6) of the Code, of all amounts that Seller or any ERISA
Affiliate of Seller is required to pay under Section 412 of the Code or under
the terms of the Seller Plans.
(f) The fair market value of the assets held under each Seller
Plan that is subject to Title IV of ERISA equals or exceeds the actuarial
present value of all accrued benefits under each such Seller Plan. No reportable
event under Section 4043 of ERISA has occurred with respect to any Seller Plan
other than any reportable event occurring by reason of the transactions
contemplated by this Agreement or a reportable event for which the requirement
of notice to the PBGC has been waived.
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(g) None of the Seller Plans is a "multiemployer pension plan,"
as such term is defined in Section 3(37) of ERISA, a "multiple employer welfare
arrangement," as such term is defined in Section 3(40) of ERISA, or a single
employer plan that has two or more contributing sponsors, at least two of whom
are not under common control, within the meaning of Section 4063(a) of ERISA.
(h) A favorable determination letter has been issued by the
Internal Revenue Service with respect to each of the Seller Plans that is
intended to be "qualified" within the meaning of Section 401(a) of the Code to
the effect that such plan is so qualified and, to the knowledge of Seller, no
condition exists that could adversely affect the qualified status of any such
Seller Plan. Each of the Seller Plans that is intended to satisfy the
requirements of Section 125 or 501(c)(9) of the Code satisfies such requirements
in all material respects. Each of the Seller Plans has been operated and
administered in all material respects in accordance with its terms and
applicable laws, including but not limited to ERISA and the Code.
(i) There are no actions, suits or claims pending, or, to the
knowledge of Seller, threatened or anticipated (other than routine claims for
benefits) against any Seller Plan, the assets of any Seller Plan or against
Seller or any ERISA Affiliate of Seller with respect to any Seller Plan. There
is no judgment, decree, injunction, rule or order of any court, governmental
body, commission, agency or arbitrator outstanding against or in favor of any
Seller Plan or any fiduciary thereof (other than rules of general
applicability). There are no pending or, to the knowledge of Seller, threatened
audits, examinations or investigations by any governmental body, commission or
agency involving any Seller Plan.
(j) The consummation of the transactions contemplated by this
Agreement will not result in, and is not a precondition to, (i) any current or
former employee or director of Seller or any ERISA Affiliate of Seller becoming
entitled to severance pay, unemployment compensation or any similar payment,
(ii) any acceleration in the time of payment or vesting, or increase in the
amount, of any compensation due to any such current or former employee or
director, or (iii) any renewal or extension of the term of any agreement
regarding compensation for any such current or former employee or director.
2.14. CERTAIN CONTRACTS
(a) Neither Seller nor any Seller Subsidiary is a party to, or
is bound by, (i) any material contract as defined in Item 601(b)(10) of
Regulation S-K of the SEC or any other contract or similar arrangement
reasonably deemed material by Seller's management, whether or not made in the
ordinary course of business (other than loans or loan commitments and funding
transactions in the ordinary course of business of any Seller Subsidiary) or any
agreement restricting the nature or geographic scope of its business activities
in any material respect, (ii) any agreement, indenture or other instrument
relating to the borrowing of money by Seller or any Seller Subsidiary or the
guarantee by Seller or any Seller Subsidiary of any such obligation, in each
case amounting singly or in the aggregate to more than $100,000, other than
agreements, indentures, instruments or guarantees relating to transactions
entered into in the ordinary course of business, (iii) any agreement,
arrangement or commitment relating to the employment of a consultant who was
formerly a director or executive officer of Seller or any Seller Subsidiary or
the employment, election, retention in office or severance of any present or
former director or
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officer of Seller or any Seller Subsidiary, or (iv) any contract, agreement or
understanding with a labor union, in each case whether written or oral.
(b) Neither Seller nor any Seller Subsidiary is in default under
any material agreement, commitment, arrangement, lease, insurance policy or
other instrument whether entered into in the ordinary course of business or
otherwise and whether written or oral, and there has not occurred any event
that, with the lapse of time or giving of notice or both, would constitute such
a default, except for such defaults which would not, individually or in the
aggregate, have a Material Adverse Effect on Seller.
2.15. LEGAL PROCEEDINGS
There are no actions, suits or proceedings instituted, pending or, to
the knowledge of Seller or any Seller Subsidiary, threatened against Seller or
any Seller Subsidiary or against any asset, interest or right of Seller or any
Seller Subsidiary which could reasonably be expected to, individually or in the
aggregate, have a Material Adverse Effect on Seller. To the knowledge of Seller
or any Seller Subsidiary, there are no actual or threatened actions, suits or
proceedings which present a claim to restrain or prohibit the transactions
contemplated herein or to impose any material liability in connection therewith
which could reasonably be expected to, individually or in the aggregate, have a
Material Adverse Effect on Seller. There are no actions, suits or proceedings
instituted, pending or, to the knowledge of Seller or any Seller Subsidiary,
threatened against any present or, to Seller's knowledge former director or
officer of Seller or any Seller Subsidiary, that would reasonably be expected to
give rise to a claim for indemnification and that could reasonably be expected
to, individually or in the aggregate, have a Material Adverse Effect on Seller.
2.16. COMPLIANCE WITH LAWS
Except as Previously Disclosed, Seller and each Seller Subsidiary is in
compliance in all material respects with all statutes and regulations applicable
to the conduct of its business, and neither Seller nor any Seller Subsidiary has
received notification from any agency or department of federal, state or local
government (i) asserting a material violation of any such statute or regulation,
(ii) threatening to revoke any license, franchise, permit or government
authorization or (iii) restricting or in any way limiting its operations, except
for such noncompliance, violations, revocations, limitations and restrictions
which would not, individually or in the aggregate, have a Material Adverse
Effect on Seller. Neither Seller nor any Seller Subsidiary is subject to any
regulatory or supervisory cease and desist order, agreement, directive,
memorandum of understanding or commitment which would be reasonably expected to
have a Material Adverse Effect on Seller, and none of them has received any
communication requesting that they enter into any of the foregoing.
2.17. LABOR MATTERS
With respect to their employees, neither Seller nor any Seller
Subsidiary is a party to any labor agreement with any labor organization, group
or association and has not engaged in any unfair labor practice. Since January
1, 2000 and prior to the date hereof, to Seller's knowledge, Seller and the
Seller Subsidiaries have not experienced any attempt by organized labor or its
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representatives to make Seller or any Seller Subsidiary conform to demands of
organized labor relating to their employees or to enter into a binding agreement
with organized labor that would cover the employees of Seller or any Seller
Subsidiary. To the knowledge of Seller and the Seller Subsidiaries, there is no
unfair labor practice charge or other complaint by any employee or former
employee of Seller or any Seller Subsidiary against any of them pending before
any court, arbitrator or governmental agency arising out of Seller's or such
Seller Subsidiary's activities, which charge or complaint would, individually or
in the aggregate, have a Material Adverse Effect on Seller; there is no labor
strike or labor disturbance pending or, to the knowledge of Seller and the
Seller Subsidiaries, threatened against any of them; and neither Seller nor any
Seller Subsidiary has experienced a work stoppage or other material labor
difficulty since January 1, 2000.
2.18. BROKERS AND FINDERS
Neither Seller nor any Seller Subsidiary, nor any of their respective
officers, directors or employees, has employed any broker, finder or financial
advisor or incurred any liability for any fees or commissions in connection with
the transactions contemplated herein or the Plan of Merger, except for Seller's
retention of Xxxxx, Xxxxxxxx & Xxxxx, Inc. ("KBW") and X.X. Xxxxxx & Co. ("XX
Xxxxxx") to perform certain financial advisory services as Previously Disclosed.
Prior to the execution and delivery of this Agreement, XX Xxxxxx has delivered
to the Board of Directors of Seller an opinion that the Merger Consideration is
fair from a financial point of view to the shareholders of Seller.
2.19. INSURANCE
Seller and the Seller Subsidiaries each currently maintains insurance in
amounts considered by Seller and any Seller Subsidiary as applicable, to be
reasonably necessary for their operations. Neither Seller nor any Seller
Subsidiary has received any notice of a material premium increase over current
rates or cancellation with respect to any of its insurance policies or bonds,
and within the last three years, neither Seller nor any Seller Subsidiary has
been refused any insurance coverage sought or applied for, and Seller has no
reason to believe that existing insurance coverage cannot be renewed as and when
the same shall expire, upon terms and conditions substantially as favorable as
those presently in effect, other than possible increases in premiums or
unavailability in coverage that have not resulted from any extraordinary loss
experience of Seller or any Seller Subsidiary. Seller has Previously Disclosed a
list of all outstanding claims as of the date hereof by Seller or any Seller
Subsidiary under any insurance policy. The deposits of Seller Bank are insured
by the FDIC in accordance with the FDIA, and Seller Bank and its predecessors
have paid all assessments and filed all reports required by the FDIA.
2.20. ENVIRONMENTAL LIABILITY
Neither Seller nor any Seller Subsidiary has received any written notice
of any legal, administrative, arbitral or other proceeding, claim or action and,
to the knowledge of Seller and the Seller Subsidiaries, there is no governmental
investigation of any nature ongoing, in each case that would reasonably be
expected to result in the imposition, on Seller or any Seller Subsidiary of any
liability arising under any local, state or federal environmental statute,
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regulation or ordinance including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended,
which liability would have a Material Adverse Effect on Seller; except as
Previously Disclosed, there are no facts or circumstances known to Seller which
would reasonably be expected to form the basis for any such proceeding, claim,
action or governmental investigation that would impose any such liability; and
neither Seller nor any Seller Subsidiary is subject to any agreement, order,
judgment, decree or memorandum by or with any court, governmental authority,
regulatory agency or third party imposing any such liability.
2.21. ADMINISTRATION OF TRUST ACCOUNTS
Each Seller Subsidiary has properly administered all common trust funds
and collective investment funds and all accounts for which it acts as a
fiduciary or agent, including but not limited to accounts for which it serves as
a trustee, agent, custodian, personal representative, guardian, conservator or
investment advisor, in accordance with the terms of the governing documents and
applicable state and federal law and regulation and common law, except where the
failure to do so would not, individually or in the aggregate, have a Material
Adverse Effect on Seller. Neither Seller, any Seller Subsidiary, nor any
director, officer or employee of Seller or any Seller Subsidiary acting on
behalf of Seller or a Seller Subsidiary, has committed any breach of trust with
respect to any such common trust fund or collective investment fund or fiduciary
or agency account, and the accountings for each such common trust fund or
collective investment fund or fiduciary or agency account are true and correct
in all material respects and accurately reflect the assets of such common trust
fund or collective investment fund or fiduciary or agency account, except for
such breaches and failures to be true, correct and accurate which would not,
individually or in the aggregate, have a Material Adverse Effect on Seller.
2.22. INTELLECTUAL PROPERTY
Except as Previously Disclosed, Seller or a Seller Subsidiary owns the
entire right, title and interest in and to, or has valid licenses with respect
to, all of the Intellectual Property necessary in all material respects to
conduct the business and operations of Seller and the Seller Subsidiaries as
presently conducted, except where the failure to do so would not, individually
or in the aggregate, have a Material Adverse Effect on Seller. The ownership,
licensing or use of Intellectual Property by Seller or its Subsidiaries does not
conflict with, infringe, misappropriate or otherwise violate the Intellectual
Property rights of any other person or entity. None of such Intellectual
Property is subject to any outstanding order, decree, judgment, stipulation,
settlement, lien, charge, encumbrance or attachment, which order, decree,
judgment, stipulation, settlement, lien, charge, encumbrance or attachment would
have a Material Adverse Effect on Seller. Except as Previously Disclosed, upon
consummation of the transactions contemplated by this Agreement Purchaser and
the Purchaser Subsidiaries will be entitled to continue to use all such
Intellectual Property without the payment of any fees, licenses or other
payments (other than ongoing payments required under license agreements for
software used by Seller or the Seller Subsidiaries in Previously Disclosed
amounts consistent with past practice).
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2.23. RISK MANAGEMENT INSTRUMENTS
All interest rate swaps, caps, floors, option agreements, futures and
forward contracts and other similar risk management arrangements to which Seller
or a Seller Subsidiary is a party, whether entered into for Seller's own
account, or for the account of one or more of the Seller Subsidiaries or their
customers, were entered into (i) in accordance with prudent business practices
and all applicable laws, rules, regulations and regulatory policies and (ii)
with counterparties believed to be financially responsible at the time; and each
of them constitutes the valid and legally binding obligation of Seller or one of
the Seller Subsidiaries, enforceable in accordance with its terms (except as may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and similar laws of general equity principles), and neither
Seller nor any Seller Subsidiary nor to Seller's knowledge, any other party
thereto, is in breach of any of its obligations under any such agreement or
arrangement. Seller has previously made available to Purchaser all of such
agreements and arrangements that are in effect as of the date of this Agreement.
2.24. REPURCHASE AGREEMENTS
With respect to all agreements pursuant to which Seller or any Seller
Subsidiary has purchased securities subject to an agreement to resell, if any,
Seller or such Seller Subsidiary, as the case may be, has a valid, perfected
first lien or security interest in or evidence of ownership in book entry form
of the government securities or other collateral securing the repurchase
agreements, and the value of such collateral equals or exceeds the amount of the
debt secured thereby.
2.25. CERTAIN INFORMATION
When the Registration Statement or any post-effective amendment thereto
shall become effective, and at all times subsequent to such effectiveness up to
and including the time of the Seller shareholders' meeting to vote upon the
Merger, such Registration Statement and all amendments or supplements thereto,
with respect to all information set forth or incorporated by reference therein
furnished by Seller relating to Seller and the Seller Subsidiaries, (i) shall
comply in all material respects with the applicable provisions of the Securities
Laws, and (ii) shall not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements contained therein not misleading. All information concerning Seller
and its directors, officers, shareholders and any Subsidiaries included (or
submitted for inclusion) in any application and furnished by it pursuant to
Section 4.3 of this Agreement shall be true, correct and complete in all
material respects.
2.26. YEAR 2000
The computer software operated by Seller and any Seller Subsidiary which
is material to the conduct of the business of Seller and any Seller Subsidiary
is capable of providing uninterrupted millennium functionality to record, store,
process and present calendar dates falling on or after January 1, 2000 in
substantially the same manner and with the same functionality as such software
records, stores, processes and presents such calendar dates falling on or before
December 31, 1999, and such software and Seller and any Seller Subsidiary
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currently are otherwise in compliance with all relevant Regulatory Authority
guidance and requirements relating to the Year 2000 computer issues including
the statements of the Federal Financial Institutions Examination Council, dated
May 5, 1997, entitled "Year 2000 Project Management Awareness," and December
1997, entitled "Safety and Soundness Guidelines Concerning the Year 2000
Business Risk." The costs of the adaptations referred to in this clause have not
and will not have a Material Adverse Effect on Seller.
2.27. TAX TREATMENT
As of the date of this Agreement, Seller knows of no reason relating to
it or any of the Seller Subsidiaries which would reasonably cause it to believe
that the Merger will not qualify as a reorganization under Section 368(a) of the
Code.
2.28. TAKEOVER LAWS
Seller has taken all action required to by taken by it in order to
exempt this Reorganization Agreement, the Plan of Merger and the Option
Agreement and the transactions contemplated hereby and thereby from, and this
Reorganization Agreement, the Plan of Merger and the Option Agreement and the
transactions contemplated hereby and thereby are exempt from, the requirements
of any "moratorium," "control share," "fair price," "affiliate transaction,"
"business combination," or other antitakeover laws and regulations of any state
(collectively, "Takeover Laws"), including, without limitation, the State of New
York.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF
PURCHASER AND MERGER SUB
Except as Previously Disclosed, Purchaser and Merger Sub hereby jointly
and severally represent and warrant to Seller as follows:
3.1. CAPITAL STRUCTURE OF PURCHASER
The authorized capital stock of Purchaser consists at March 31, 2000 of
(i) 1,000,000 shares of preferred stock, par value $1.00 per share ("Purchaser
Preferred Stock"), none of which were issued and outstanding and (ii) 15,000,000
shares of common stock, par value $5.00 per share ("Purchaser Common Stock"), of
which, as of July 7, 2000, 7,650,380 shares were issued and outstanding, 451,159
shares were held in treasury and approximately 234,439 shares were reserved for
issuance under plans or arrangements relating to options or other Rights. All
outstanding shares of Purchaser capital stock have been duly authorized and
validly issued and are fully paid and nonassessable. None of the shares of
Purchaser's capital stock has been issued in violation of the preemptive rights
of any person. The shares of Purchaser Common Stock to be issued in connection
with the Merger have been duly authorized and, when issued in accordance with
the terms of this Reorganization Agreement and the Plan of Merger, will be
validly issued, fully paid, nonassessable and free and clear of any preemptive
rights.
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3.2. ORGANIZATION, STANDING AND AUTHORITY OF PURCHASER
Purchaser is a duly incorporated corporation, validly existing and in
good standing under the laws of New York, with full corporate power and
authority to carry on its business as now conducted and is duly licensed or
qualified to do business in the states of the United States and foreign
jurisdictions where its ownership or leasing of property or the conduct of its
business requires such qualification, except where the failure to have such
corporate power and authority or to be so licensed or qualified would not have a
Material Adverse Effect on Purchaser. Purchaser is registered as a bank holding
company under the Bank Holding Company Act.
3.3. OWNERSHIP OF PURCHASER SUBSIDIARIES; CAPITAL STRUCTURE OF
PURCHASER SUBSIDIARIES
Purchaser has no Subsidiary other than: (i) Subsidiaries disclosed in
Purchaser's Annual Report on Form 10-K for the year ended December 31, 1999;
(ii) Merger Sub; or (iii) any Subsidiary that, taken as a whole together with
other excluded Subsidiaries of Purchaser not Previously Disclosed, is not a
significant subsidiary under the SEC's Regulation S-X. Except as Previously
Disclosed, the outstanding shares of capital stock of the Purchaser Subsidiaries
have been duly authorized and validly issued and are fully paid and (except as
provided in 12 U.S.C. Section 55 or Section 114 of the New York Banking Law)
nonassessable and all such shares are directly or indirectly owned by Purchaser
free and clear of all liens, claims and encumbrances. No Purchaser Subsidiary
has or is bound by any Rights which are authorized, issued or outstanding with
respect to the capital stock of any Purchaser Subsidiary and, except as
Previously Disclosed, there are no agreements, understandings or commitments
relating to the right of Purchaser to vote or to dispose of said shares. None of
the shares of capital stock of any Purchaser Subsidiary has been issued in
violation of the preemptive rights of any person.
3.4. ORGANIZATION, STANDING AND AUTHORITY OF PURCHASER SUBSIDIARIES
Each Purchaser Subsidiary is a duly organized corporation or banking
corporation, validly existing and in good standing under applicable laws, except
where the failure to be duly organized, validly existing and in good standing
would not have a Material Adverse Effect on Purchaser. Each Purchaser Subsidiary
(i) has full power and authority to carry on its business as now conducted, and
(ii) is duly licensed or qualified to do business in the states of the United
States and foreign jurisdictions where its ownership or leasing of property or
the conduct of its business requires such licensing or qualification and where
failure to have such corporate power and authority or to be licensed or
qualified would have a Material Adverse Effect on Purchaser. Each Purchaser
Subsidiary has all federal, state, local and foreign governmental authorizations
necessary for it to own or lease its properties and assets and to carry on its
business as it is now being conducted, except where the failure to be so
authorized would not have a Material Adverse Effect on Purchaser.
3.5. AUTHORIZED AND EFFECTIVE AGREEMENT
(a) Each of Purchaser and Merger Sub has all requisite corporate
power and authority to enter into and perform all of its obligations under this
Reorganization Agreement and the Plan of Merger. The execution and delivery of
this Reorganization Agreement and the
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Plan of Merger and the consummation of the transactions contemplated hereby and
thereby have been duly and validly authorized by all necessary corporate action
in respect thereof on the part of Purchaser and Merger Sub.
(b) Assuming the accuracy of the representation contained in
Section 2.5(b) hereof, this Reorganization Agreement and the Plan of Merger
constitute legal, valid and binding obligations of each of Purchaser and Merger
Sub, in each case enforceable against it in accordance with their respective
terms subject, as to enforceability, to bankruptcy, insolvency and other laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.
(c) Neither the execution and delivery of this Reorganization
Agreement or the Plan of Merger, nor consummation of the transactions
contemplated hereby or thereby, nor compliance by Purchaser or Merger Sub with
any of the provisions hereof or thereof shall (i) conflict with or result in a
breach of any provision of the articles or certificate of incorporation or
association, charter or bylaws of Purchaser or any Purchaser Subsidiary, (ii)
assuming the consents and approvals contemplated by Section 4.3 hereof and the
consents and approvals which are Previously Disclosed are duly obtained,
constitute or result in a breach of any term, condition or provision of, or
constitute a default under, or give rise to any right of termination,
cancellation or acceleration with respect to, or result in the creation of any
lien, charge or encumbrance upon any property or asset of Purchaser or any
Purchaser Subsidiary pursuant to, any note, bond, mortgage, indenture, license,
agreement or other instrument or obligation, or (iii) assuming the consents and
approvals contemplated by Section 4.3 hereof and the consents and approvals
which are Previously Disclosed are duly obtained, violate any order, writ,
injunction, decree, statute, rule or regulation applicable to Purchaser or any
Purchaser Subsidiary, except (in the case of clauses (ii) and (iii) above) for
such violations, rights, conflicts, breaches, creations or defaults which,
either individually or in the aggregate, will not have a Material Adverse Effect
on Purchaser.
(d) Except for approvals specified in Section 4.3 hereof and
except as expressly referred to in this Reorganization Agreement, no consent,
approval or authorization of, or declaration, notice, filing or registration
with, any governmental or regulatory authority, or any other person, is required
to be made or obtained by Purchaser or Merger Sub on or prior to the Closing
Date in connection with the execution, delivery and performance of this
Agreement and the Plan of Merger or the consummation of the transactions
contemplated hereby or thereby. As of the date hereof, Purchaser is not aware of
any reason that the condition set forth in Section 5.1(b) of this Agreement,
including the proviso thereto, would not be satisfied.
3.6. SEC DOCUMENTS; REGULATORY FILINGS
Purchaser has filed all SEC Documents required by the Securities Laws
since December 31, 1994, and such SEC Documents complied, as of their respective
dates, in all material respects with the Securities Laws. Purchaser and each of
the Purchaser Subsidiaries has filed all reports required by statute or
regulation to be filed with any federal or state bank regulatory agency, except
where the failure to so file would not have a Material Adverse Effect on
Purchaser, and such reports were prepared in accordance with the applicable
statutes, regulations and instructions in existence as of the date of filing of
such reports in all material respects.
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3.7. FINANCIAL STATEMENTS; BOOKS AND RECORDS; MINUTE BOOKS
The Purchaser Financial Statements filed by Purchaser in SEC documents
prior to the date of this Agreement fairly present, and the Purchaser Financial
Statements filed by Purchaser in SEC Documents after the date of the Agreement
will fairly present the consolidated financial position of Purchaser and its
consolidated Subsidiaries as of the dates indicated and the consolidated results
of operations, changes in shareholders' equity and cash flows of Purchaser and
its consolidated Subsidiaries for the periods then ended and each such financial
statement has been or will be, as the case may be, prepared in conformity with
generally accepted accounting principles applicable to financial institutions
applied on a consistent basis except as disclosed therein and except in the case
of unaudited statements, as permitted by Form 10-Q and subject to normal
recurring year-end adjustments. The books and records of Purchaser and each
Purchaser Subsidiary fairly reflect in all material respects the transactions to
which it is a party or by which its properties are subject or bound. Such books
and records have been properly kept and maintained and are in compliance in all
material respects with all applicable legal and accounting requirements. The
minute books of Purchaser and the Purchaser Subsidiaries contain records which
are accurate in all material respects of all corporate actions of its
shareholders and Board of Directors (including committees of its Board of
Directors).
3.8. MATERIAL ADVERSE CHANGE
Purchaser has not, on a consolidated basis, suffered any change in its
financial condition, results of operations or business since December 31, 1999
which individually or in the aggregate with any other such changes would
constitute a Material Adverse Effect with respect to Purchaser.
3.9. ABSENCE OF UNDISCLOSED LIABILITIES
Neither Purchaser nor any Purchaser Subsidiary has any liability
(contingent or otherwise), excluding contractually assumed contingencies, that
is material to Purchaser on a consolidated basis, or that, when combined with
all similar undisclosed liabilities, would be material to Purchaser on a
consolidated basis, except as Previously Disclosed, as disclosed in the
Purchaser Financial Statements filed with the SEC prior to the date hereof and
except for liabilities incurred in the ordinary course of business subsequent to
December 31, 1999.
3.10. EMPLOYEE BENEFIT PLANS
Each of the Purchaser Plans complies in all material respects with the
requirements of applicable law, including ERISA and the Code. For purposes of
this Agreement, the term "Purchaser Plan" means each bonus, incentive
compensation, severance pay, medical or other insurance program, retirement
plan, or other employee benefit plan program, agreement or arrangement
sponsored, maintained or contributed to by Purchaser or any trade or business,
whether or not incorporated, that together with Purchaser or any of the
Purchaser Subsidiaries would be deemed a "single employer" under Section 414 of
the Code (an "ERISA Affiliate") or under which Purchaser or any ERISA Affiliate
has any liability or obligation. No liability under Title IV of ERISA has been
incurred by Purchaser or any ERISA Affiliate that has not been satisfied in
full, and no condition exists that presents a material risk to Purchaser or any
ERISA
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22
Affiliate of incurring any such liability. Full payment has been made, or will
be made in accordance with Section 404(a)(6) of the Code of all amounts that
Purchaser or any ERISA Affiliate is required to pay under Section 412 of the
Code or under the terms of the Purchaser Plans, and no accumulated funding
deficiency (within the meaning of Section 412 of the Code) exists with respect
to any Purchaser Plan.
3.11. LEGAL PROCEEDINGS
There are no actions, suits or proceedings instituted, pending or, to
the knowledge of Purchaser and Merger Sub, threatened against Purchaser, Merger
Sub or any Purchaser Subsidiary or against any asset, interest or right of
Purchaser or any Purchaser Subsidiary which could reasonably be expected to,
individually or in the aggregate, have a Material Adverse Effect on Purchaser.
There are no actual or, to the knowledge of Purchaser or any Purchaser
Subsidiary, threatened actions, suits or proceedings which present a claim to
restrain or prohibit the transactions contemplated herein or to impose any
material liability in connection therewith which could reasonably be expected
to, individually or in the aggregate, have a Material Adverse Effect on
Purchaser.
3.12. COMPLIANCE WITH LAWS
Except as Previously Disclosed, each of Purchaser and the Purchaser
Subsidiaries is in compliance in all material respects with all statutes and
regulations applicable to the conduct of its business, and none of them has
received notification from any agency or department of federal, state or local
government (i) asserting a material violation of any such statute or regulation,
(ii) threatening to revoke any license, franchise, permit or government
authorization or (iii) restricting or in any way limiting its operations, except
for such noncompliance, violations, revocations, limitations and restrictions
which would not, individually or in the aggregate, have a Material Adverse
Effect on Purchaser. None of Purchaser or any Purchaser Subsidiary is subject to
any regulatory or supervisory cease and desist order, agreement, directive,
memorandum of understanding or commitment which could be reasonably anticipated
to have a Material Adverse Effect on Purchaser, and none of them has received
any communication requesting that they enter into any of the foregoing.
3.13. TAX MATTERS
(a) Purchaser and each Purchaser Subsidiary have timely filed, or
have timely requested filing extensions for, federal income tax returns for each
year through December 31, 1998 and have timely filed, or caused to be filed, or
have timely requested filing extensions for, all other Tax Returns required to
be filed with respect to Purchaser or any Purchaser Subsidiary, except where the
failure to file timely such federal income and other Tax Returns would not, in
the aggregate, have a Material Adverse Effect on Purchaser. All Taxes due by or
on behalf of Purchaser or any Purchaser Subsidiary have been paid or adequate
reserves have been established on the Purchaser Financial Statements for the
payment of such Taxes, except where any such failure to pay or establish
adequate reserves would not, in the aggregate, have a Material Adverse Effect on
Purchaser. Neither Purchaser nor any Purchaser Subsidiary will have any material
liability for any such Taxes in excess of the amounts so paid or reserves or
accruals so established except where such liability would not have a Material
Adverse Effect on Purchaser.
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(b) All Tax Returns filed by Purchaser and each Purchaser
Subsidiary are complete and accurate in all material respects. Neither Purchaser
nor any Purchaser Subsidiary is delinquent in the payment of any material Tax,
and, except as Previously Disclosed, none of them has requested any extension of
time within which to file any Tax Returns which have not since been filed.
Except as Previously Disclosed or as fully settled and paid or accrued on the
Purchaser Financial Statements, to Purchaser's knowledge, no material audit
examination, deficiency, adjustment, refund claim or litigation with respect to
Tax Returns, paid Taxes, unpaid Taxes or Tax attributes of Purchaser or any
Purchaser Subsidiary has been proposed, asserted or assessed (tentatively or
otherwise).
(c) Neither Purchaser nor any Purchaser Subsidiary is a party to
any agreement (other than an agreement exclusively among Purchaser and the
Purchaser Subsidiaries) providing for the allocation or sharing of, or
indemnification for, Taxes.
(d) Neither Purchaser nor any Purchaser Subsidiary is required to
include in income any adjustment in any taxable period ending after the date
hereof pursuant to Section 481(a) of the Code other than any adjustment for
which it already has made an accrual.
(e) Neither Purchaser nor any Purchaser Subsidiary has executed
or entered into any written agreement with any Tax authority conceding or
agreeing to any treatment of Taxes or Tax attributes, including, without
limitation, Internal Revenue Service Form 870 or Form 870-AD, closing agreement
or special closing agreement, affecting the Purchaser or any Purchaser
Subsidiary pursuant to Section 7121 of the Code or any predecessor provision
thereof or any similar provision of state, local or foreign law, which agreement
would have a Material Adverse Effect on Purchaser or any Purchaser Subsidiary.
(f) For purposes of this Section 3.13 and Section 3.19, (i)
references to Purchaser and any Purchaser Subsidiary shall include predecessors
thereof and (ii) "Purchaser Subsidiary" shall include each Subsidiary (as
defined in Article 1 hereof) of Purchaser, and each corporation, partnership,
limited liability company, joint venture or other entity which Purchaser
controls directly or indirectly (through one or more intermediaries). For
purposes of the previous sentence, "control" means the possession, direct or
indirect, of the power either (1) to vote fifty percent (50%) or more of the
voting interests of a corporation, partnership, limited liability company, joint
venture or other entity, or (2) to direct or cause the direction of the
management and policies of a corporation, partnership, limited liability
company, joint venture or other entity, whether by contract or otherwise.
3.14. BROKERS AND FINDERS
Neither Purchaser nor any Purchaser Subsidiary, nor any of their
respective officers, directors or employees, has employed any broker, finder or
financial advisor or incurred any liability for any fees or commissions in
connection with the transactions contemplated herein or the Plan of Merger.
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3.15. INSURANCE
Purchaser and the Purchaser Subsidiaries each currently maintains
insurance in amounts considered by Purchaser and any Purchaser Subsidiary as
applicable, to be reasonably necessary for their operations. Neither Purchaser
nor any Purchaser Subsidiary has received any notice of a material premium
increase or cancellation with respect to any of its insurance policies or bonds,
and within the last three years, neither Purchaser nor any Purchaser Subsidiary
has been refused any insurance coverage sought or applied for, and Purchaser has
no reason to believe that existing insurance coverage cannot be renewed as and
when the same shall expire, upon terms and conditions substantially as favorable
as those presently in effect, other than possible increases in premiums or
unavailability in coverage that have not resulted from any extraordinary loss
experience of Purchaser or any Purchaser Subsidiary.
3.16. ENVIRONMENTAL LIABILITY
Neither Purchaser nor any Purchaser Subsidiary has received any written
notice of any legal, administrative, arbitral or other proceeding, claim or
action and, to the knowledge of Purchaser and the Purchaser Subsidiaries, there
is no governmental investigation of any nature ongoing, in each case that could
reasonably be expected to result in the imposition, on Purchaser or any
Purchaser Subsidiary of any liability arising under any local, state or federal
environmental statute, regulation or ordinance including, without limitation,
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, which liability would have a Material Adverse Effect on
Purchaser; except as Previously Disclosed, there are no facts or circumstances
known to Purchaser which could reasonably be expected to form the basis for any
such proceeding, claim, action or governmental investigation that would impose
any such liability; and neither Purchaser nor any Purchaser Subsidiary is
subject to any agreement, order, judgment, decree or memorandum by or with any
court, governmental authority, regulatory agency or third party imposing any
such liability.
3.17. CERTAIN INFORMATION
When the Registration Statement or any post-effective amendment thereto
shall become effective, and at all times subsequent to such effectiveness up to
and including the time of the Seller shareholders' meeting to vote upon the
Merger, such Registration Statement and all amendments or supplements thereto,
except with respect to all information set forth or incorporated by reference
therein furnished by Seller relating to Seller and the Seller Subsidiaries, (i)
shall comply in all material respects with the applicable provisions of the
Securities Laws, and (ii) shall not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements contained therein not misleading. All information
concerning Purchaser and its directors, officers, shareholders and any
Subsidiaries included (or submitted for inclusion) in any application and
furnished by it pursuant to Section 4.3 of this Agreement shall be true, correct
and complete in all material respects.
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3.18. YEAR 2000
The computer software operated by Purchaser or any Purchaser Subsidiary
which is material to the conduct of Purchaser's or any Purchaser Subsidiary's
business is capable of providing uninterrupted millennium functionality to
record, store, process and present calendar dates falling on or after January 1,
2000 in substantially the same manner and with the same functionality as such
software records, stores, processes and presents such calendar dates falling on
or before December 31, 1999, and such software and Purchaser or any Purchaser
Subsidiary currently are otherwise in compliance with all relevant Regulatory
Authority guidance and requirements relating to the Year 2000 computer issues
including the statements of the Federal Financial Institutions Examination
Council, dated May 5, 1997, entitled "Year 2000 Project Management Awareness,"
and December 1997, entitled "Safety and Soundness Guidelines Concerning the Year
2000 Business Risk." The costs of the adaptations referred to in this clause
will not have a Material Adverse Effect on Purchaser.
3.19. TAX TREATMENT
As of the date of this Agreement, Purchaser knows of no reason relating
to it or any of the Purchaser Subsidiaries which would reasonably cause it to
believe that the Merger will not qualify as a reorganization under Section
368(a) of the Code.
3.20. MERGER CONSIDERATION
Purchaser will have, at the Effective Time, unissued shares of Common
Stock and shares of Common Stock held in its treasury that are not reserved for
any other purpose sufficient to provide the Stock Consideration and also will
have available to it at the Effective Time funds sufficient to provide the Cash
Consideration.
ARTICLE 4.
COVENANTS
4.1. SHAREHOLDERS' MEETING
Seller shall submit this Reorganization Agreement and the Plan of Merger
to its shareholders for approval at a special meeting to be held as soon as
practicable. Subject to the fiduciary duties of the Board of Directors of Seller
as determined after consultation with counsel, the Board of Directors of Seller
shall recommend that the shareholders of Seller vote in favor of such approval.
At such meeting, subject to the fiduciary or contractual duties of Purchaser
with respect to shares of Seller Common Stock held in fiduciary accounts,
Purchaser shall, and shall cause its Subsidiaries to, cause all shares of Seller
Common Stock then owned by Purchaser or any such Subsidiary, if any, to be voted
in favor of the adoption of this Reorganization Agreement and the Plan of
Merger.
4.2. PROXY STATEMENT; REGISTRATION STATEMENT
As promptly as practicable after the date hereof, Purchaser and Seller
shall cooperate in the preparation of the Proxy Statement to be mailed to the
shareholders of Seller in connection with this Agreement and the transactions
contemplated hereby and to be filed by Purchaser as
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26
part of the Registration Statement. Purchaser and Seller shall cooperate in the
preparation of the Registration Statement and shall file with the Commission the
Registration Statement and cause the Registration Statement to become effective
as promptly as practicable after the date hereof. Purchaser will advise Seller,
promptly after it receives notice thereof, of the time when the Registration
Statement or any post-effective amendment thereto has become effective or any
supplement or amendment has been filed, of the issuance of any stop order, of
the suspension of qualification of the Purchaser Common Stock issuable in
connection with the Merger for offering or sale in any jurisdiction, or the
initiation or threat of any proceeding for any such purpose, or of any comments
or request by the SEC for the amendment or supplement of the Registration
Statement or for additional information. If at any time prior to the Effective
Time any event shall occur that should be set forth in an amendment of or a
supplement to the Registration Statement or the Proxy Statement, Purchaser,
Merger Sub and Seller shall cooperate with each other in the preparation of any
amendment or supplement thereto, and each shall notify the other of the receipt
of any comments of the SEC with respect to the Registration Statement or the
Proxy Statement and of any requests by the SEC for any amendment or supplement
thereto or for additional information, and shall provide to the other promptly
copies of all correspondence between Purchaser or Seller, as the case may be, or
any of its Representatives with respect to the Registration Statement or the
Proxy Statement. Purchaser shall give Seller and its counsel the opportunity to
review the Registration Statement and all responses to requests for additional
information by and replies to comments of the SEC before their being filed with,
or sent to, the SEC, and Purchaser shall prepare and file with the SEC such
amendment or supplement as soon thereafter as is reasonably practicable. Each of
Seller, Purchaser and Merger Sub agrees to use its best efforts, after
consultation with the other parties hereto, to respond promptly to all such
comments of and requests by the SEC and to cause (x) the Registration Statement
to be declared effective by the SEC at the earliest practicable time and to be
kept effective as long as is necessary to consummate the Merger, and (y) the
Proxy Statement to be mailed to the holders of Seller Common Stock entitled to
vote at the meeting of the stockholders of Seller at the earliest practicable
time. Purchaser shall take all actions necessary to register or qualify the
shares of Purchaser Common Stock to be issued in the Merger pursuant to all
applicable state "blue sky" or securities laws and shall maintain such
registrations or qualifications in effect for all purposes hereof. Purchaser
shall apply for, and shall use reasonable best efforts to obtain, approval to
list the shares of Purchaser Common Stock to be issued in the Merger on the
NYSE, subject to official notice of issuance, prior to the Effective Date.
4.3. APPLICATIONS
As promptly as practicable after the date hereof, and after a reasonable
opportunity for review by counsel to Seller, Purchaser shall submit any
requisite applications for prior approval of, and notices with respect to, the
transactions contemplated herein, in the Plan of Merger and in the Bank Merger
Agreement, to (i) the Federal Reserve Board pursuant to Sections 3 and 4 of the
Bank Holding Company Act and the Bank Merger Act, (ii) the New York Banking
Board pursuant to Section 142 of the New York Banking Law, and (iii) the OCC
pursuant to 12 C.F.R. Section 5.33(g)(3), and each of the parties hereto shall,
and they shall cause their respective subsidiaries to, submit any applications,
notices or other filings to any other state or federal government agency,
department or body the approval of which is required for consummation of the
Merger and the Bank Merger. Seller and Purchaser each represents and warrants to
the other that all information concerning it and its directors, officers,
shareholders and subsidiaries
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27
included (or submitted for inclusion) in any such application and furnished by
it shall be true, correct and complete in all material respects. Purchaser will
provide all information and communications requested by the applicable
governmental or regulatory authorities, and Purchaser will proceed diligently
and in good faith to obtain the requisite regulatory approvals.
4.4. BEST EFFORTS
(a) Subject to the terms and conditions of this Agreement,
Purchaser, Merger Sub, and Seller shall each use its reasonable best efforts in
good faith, and each of them shall cause its Subsidiaries to use their
reasonable best efforts in good faith, to (i) furnish such information as may be
required in connection with the preparation of the documents referred to in
Sections 4.2 and 4.3 above, and (ii) take or cause to be taken all action
necessary or desirable on its part so as to permit consummation of the Merger on
or at the earliest possible date, including, without limitation, (1) obtaining
the consent or approval of each individual, partnership, corporation,
association or other business or professional entity whose consent or approval
is required for consummation of the transactions contemplated hereby, provided
that neither Seller nor any Seller Subsidiary shall agree to make any payments
or modifications to agreements in connection therewith without the prior written
consent of Purchaser, which consent shall not be unreasonably withheld and (2)
requesting the delivery of appropriate opinions, consents and letters from its
counsel and independent auditors. Subject to the terms and conditions of this
Agreement, no party hereto shall take or fail to take, or cause or permit its
Subsidiaries to take or fail to take, or to the best of its ability permit to be
taken or omitted to be taken by any third persons, any action that would
substantially impair the prospects of completing the Merger pursuant to this
Reorganization Agreement and the Plan of Merger, that would materially delay
such completion, or that would adversely affect the qualification of the Merger
as a reorganization within the meaning of Section 368(a) of the Code; provided
that nothing herein contained shall preclude Purchaser from exercising its
rights under the Option Agreement. In the event that either party has taken any
action, whether before, on or after the date hereof, that would adversely affect
such qualification, each party shall take such action as the other party may
reasonably request to cure such effect to the extent curable without a Material
Adverse Effect on either of the parties.
(b) Unless prohibited by applicable law, Seller shall give
prompt notice to Purchaser, and Purchaser shall give prompt notice to Seller, of
(i) the occurrence, or failure to occur, of any event known to it which
occurrence or failure would be reasonably likely to cause any representation or
warranty contained in this Agreement to be untrue or inaccurate at any time from
the date hereof to the Closing Date such that the condition set forth in Section
5.2(a) or 5.3(a), as applicable, would not be met if such failure to be true or
accurate were to occur or be continuing on the Closing Date, and (ii) any
material failure of Seller or Purchaser known to Seller or Purchaser, as the
case may be, to comply with or satisfy any covenant, condition or agreement to
be complied with or satisfied by it hereunder, and each party shall use all
reasonable best efforts to remedy such failure.
(c) From the date of this Agreement through the Effective Date,
to the extent permitted by law, Seller shall, and shall cause the Seller
Subsidiaries to, provide such assistance to Purchaser at Purchaser's expense and
as it shall reasonably request to assist Purchaser in converting and
transferring as soon as practicable after the Effective Date all information
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concerning the loans, deposits and other assets and liabilities of Seller and
the Seller Subsidiaries into Purchaser's own data processing system, with a view
to facilitating the integration of Purchaser's and Seller's systems and
otherwise combining Purchaser's and Seller's operations upon consummation of the
Merger; provided, however, that neither Seller nor any Seller Subsidiary shall
be required to take any action pursuant to this sentence that would interfere
unreasonably with the ongoing operations of Seller or such Seller Subsidiary.
After execution of this Agreement, to the extent permitted by law and contracts
to which they are a party, Seller shall provide Purchaser with computer file
instructions with respect to the information in its data processing system
regarding the assets and liabilities of Seller and the Seller Subsidiaries,
together with operational procedures designed to implement the transfer of such
information to Purchaser, with a view to facilitating the integration of
Purchaser's and Seller's systems and otherwise combining Purchaser's and
Seller's operations upon consummation of the Merger. After execution of this
Agreement, Seller and Purchaser shall each designate an individual to serve as
liaison concerning the transfer of data processing information and other similar
operational matters and to consult as to whether and when Seller will proceed
with its pending data processing conversion.
(d) In the event that this Agreement is terminated without the
transactions contemplated hereby having been consummated, upon the request of
Seller, Purchaser will and will cause its representatives to promptly redeliver
or cause to be redelivered, or, at its sole discretion, destroy or caused to be
destroyed, all copies of documents and information furnished by Seller, as the
case may be, or its representatives to such party and its representatives in
connection with this Agreement or the transactions contemplated hereby and
destroy or cause to be destroyed all notes, memoranda, summaries, analyses,
compilations and other writings related thereto or based thereon prepared by
Purchaser or its representatives.
(e) Each party shall provide and shall request its auditors to
provide the other party with such historical financial information regarding it
(and related audit reports and consents) as the other party may reasonably
request for disclosure purposes under the Securities Laws.
4.5. INVESTIGATION AND CONFIDENTIALITY
Seller and Purchaser each will keep the other advised of all material
developments relevant to its business and to consummation of the transactions
contemplated herein and in the Plan of Merger. Purchaser and Seller each may
make or cause to be made such investigation of the financial and legal condition
of the other as such party reasonably deems necessary or advisable in connection
with the transactions contemplated herein and in the Plan of Merger, provided,
however, that such investigation shall be conducted during normal business hours
on reasonable notice and shall be reasonably related to such transactions and
shall not interfere unnecessarily with normal operations. Purchaser and Seller
agree to furnish the other and the other's advisors with such financial data and
other information with respect to its business and properties as such other
party shall from time to time reasonably request. No investigation pursuant to
this Section 4.5 shall affect or be deemed to modify any representation or
warranty made by, or the conditions to the obligations to consummate the Merger
of, any party hereto. Each party hereto shall hold all information furnished by
the other party or any of such party's Subsidiaries or representatives pursuant
to this Agreement in confidence to the extent required
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29
by, and in accordance with, the provisions of the confidentiality agreement,
dated June 14, 2000, between Seller and Purchaser (the "Confidentiality
Agreement").
4.6. PRESS RELEASES
Seller and Purchaser shall agree with each other as to the form and
substance of any press release related to this Reorganization Agreement and the
Plan of Merger or the transactions contemplated hereby or thereby, and shall
consult each other as to the form and substance of other public disclosures
related thereto, provided, however, that nothing contained herein shall prohibit
any party, following notification to the other parties, from making any
disclosure which is required by applicable law or NYSE or Amex rules.
4.7. ACTIONS PENDING THE MERGER
(a) Prior to the Closing Date, and except as otherwise provided
for by this Reorganization Agreement, the Plan of Merger, the Option Agreement,
or consented to or approved by the other party hereto, each of Purchaser and
Seller shall, and shall cause each of its Subsidiaries to, use its reasonable
best efforts to preserve in all material respects its properties, business and
relationships with customers, employees and other persons.
(b) Seller shall not, and shall not permit any of the Seller
Subsidiaries to, except with the prior written consent of Purchaser and except
as Previously Disclosed or expressly contemplated or permitted by this
Agreement, the Plan of Merger, or the Option Agreement:
(1) carry on its business other than in the usual,
regular and ordinary course in substantially the same manner as heretofore
conducted;
(2) in the case of Seller only, declare, set aside, make
or pay any dividend or other distribution in respect of its capital stock other
than its regular quarterly cash dividends on Seller Common Stock in amounts not
in excess of $0.15 per share except as permitted by Section 4.14;
(3) issue any shares of its capital stock or permit any
treasury shares to become outstanding other than pursuant to the Option
Agreement or pursuant to Seller's Dividend Reinvestment Plan or Rights
outstanding at the date hereof or that become outstanding hereafter in
accordance with the terms of this Agreement;
(4) incur any additional debt obligation or other
obligation for borrowed money other than in the ordinary course of business
consistent with past practice;
(5) issue, grant or authorize any Rights or effect any
recapitalization, reclassification, stock dividend, stock split or like change
in capitalization, or redeem, repurchase or otherwise acquire any shares of its
capital stock except for Trust Account Shares and DPC Shares, and except for
shares to be used to fulfill Seller's obligations under the Seller Stock Option
Plans, the Premier National Bancorp Retirement & Thrift Plan and the Seller
Dividend Reinvestment Plan; provided, however, that in order to fulfill such
obligations, Seller shall acquire the necessary shares of Seller Common Stock
solely through open market purchases or shall use
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shares of Seller Common Stock then held in treasury; notwithstanding the
foregoing, Seller may continue to purchase and place into treasury Seller Common
Stock in accordance with Seller's past practice, as Previously Disclosed,
subject to applicable legal restrictions;
(6) amend its articles or certificate of incorporation
or association or bylaws; impose, or suffer the imposition, on any share of
stock of any Seller Subsidiary held by Seller of any lien, charge or
encumbrance, or permit any such lien, charge or encumbrance to exist except, in
each case, for liens, charges and encumbrances which have been Previously
Disclosed;
(7) merge with any other corporation, savings
association or bank or permit any other corporation, savings association or bank
to merge into it or consolidate with any other corporation, savings association
or bank; acquire control over any other firm, bank, corporation, savings
association or organization or create any Subsidiary;
(8) waive or release any right or cancel or compromise
any debt or claim that is material to Seller on a consolidated basis;
(9) liquidate or sell or dispose of any material assets
or acquire any material assets; except as Previously Disclosed, make any capital
expenditure in excess of $100,000 in any instance or $500,000 in the aggregate;
or, except as Previously Disclosed, establish new branches or other similar
facilities, close existing branches or similar facilities or enter into or
modify any leases or other contracts relating thereto;
(10) increase the rate of compensation of, pay or agree
to pay any bonus to, or provide any other employee benefit or incentive to, any
of its directors, officers or employees, except in a manner consistent with past
practice or as required by law or contractual obligation in effect as of the
date hereof, except that Seller may pay, in the ordinary course of business in
amounts consistent with Seller's past practice, all annual bonuses for calendar
2000 to such employees who remain employed by Seller as of the Closing Date in
accordance with past practice and the terms of any bonus plan, up to the
aggregate amount Previously Disclosed to Purchaser.
(11) change its lending, investment, asset/liability
management or other material banking policies in any material respect except as
may be required by applicable law, regulation or order;
(12) change its methods of accounting in effect at
December 31, 1999, except as required by changes in generally accepted
accounting principles concurred in by its independent certified public
accountants, or change any of its methods of reporting income, deductions or
other items for federal income tax purposes from those employed in the
preparation of its federal income tax returns for the year ended December 31,
1999, except as required by applicable law;
(13) authorize or permit any of its officers, directors,
employees or agents to directly or indirectly solicit, initiate or encourage any
inquiries relating to, or the making of any proposal which constitutes, a
"Takeover Proposal" (as defined below), or, except to the extent its Board of
Directors determines to be legally required for the discharge of its fiduciary
duties, (i) recommend or endorse any Takeover Proposal, (ii) participate in any
discussions or negotiations, (iii) provide third parties with any nonpublic
information, relating to any such inquiry or proposal,
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or (iv) otherwise facilitate any effort or attempt to make or implement a
Takeover Proposal; provided, however, that Seller may communicate information
about any such Takeover Proposal to its shareholders if, in the judgment of
Seller's Board of Directors, after consultation with outside counsel, such
communication is necessary in order to comply with its fiduciary duties to
Seller's shareholders required under applicable law. Seller will take all
actions necessary or advisable to inform the appropriate individuals or entities
referred to in the first sentence hereof of the obligations undertaken herein.
Seller will notify Purchaser immediately if any such inquiries or Takeover
Proposals are received by, any such information is requested from, or any such
negotiations or discussions are sought to be initiated or continued with,
Seller, and Seller will promptly inform Purchaser in writing of all of the
relevant details with respect to the foregoing. As used in this Agreement,
"Takeover Proposal" shall mean any tender or exchange offer, proposal for a
merger, consolidation or other business combination involving Seller or any
Seller Subsidiary or any proposal or offer to acquire in any manner a
substantial equity interest in, or a substantial portion of the assets of,
Seller or any Seller Subsidiary other than the transactions contemplated or
permitted by this Agreement, the Plan of Merger and the Option Agreement; or
(14) agree to do any of the foregoing.
(c) Purchaser shall not, and shall not permit any of the
Purchaser Subsidiaries to, except with the prior written consent of Seller or as
expressly contemplated or permitted by this Agreement, the Plan of Merger or the
Option Agreement, carry on its business other than in the usual, regular and
ordinary course in substantially the same manner as heretofore conducted.
(d) For purposes of this Section 4.7, consent or written consent,
as the case may be, shall be deemed to have been given by a party if such party
has received a request for consent hereunder from the other party and has not in
any way responded to that request within 10 business days of the receipt of such
request. Purchaser will make available Xxxxxxx X. Xxxxx, Xxxx Xxxx and Xxxxxxx
Xxxxxxxx with respect to facilitating such consents.
4.8. CERTAIN POLICIES
Prior to the Effective Date, to the extent permitted by law, Seller
shall, consistent with generally accepted accounting principles and on a basis
mutually satisfactory to it and Purchaser, modify and change its loan,
litigation and real estate valuation policies and practices (including loan
classifications and levels of reserves) so as to be applied on a basis that is
consistent with that of Purchaser; provided, however, that Seller shall not be
obligated to take any such action pursuant to this Section 4.8 unless and until
(i) Purchaser irrevocably acknowledges to Seller in writing that all conditions
to its obligation to consummate the Merger have been satisfied; and (ii)
Purchaser irrevocably waives in writing any and all rights that it may have to
terminate this Agreement and Plan of Merger and Seller has obtained the approval
of this Reorganization Agreement and the Plan of Merger from its shareholders.
4.9. CLOSING; ARTICLES OF MERGER
The transactions contemplated by this Reorganization Agreement and the
Plan of Merger shall be consummated at a closing to be held at the offices of
the law firm of Xxxxxx & Xxxxxx, 399 Park Avenue, New York, New York on a date
between January 2, 2001 and February 15, 2001
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determined by the Purchaser with 5 days prior notice to Seller, or if later, the
first business day following satisfaction of the conditions to consummation of
the Merger set forth in Article 5 hereof other than conditions to be satisfied
at the Closing (such later date, the "Closing Date"). In connection with such
Closing, Merger Sub and Seller shall execute a certificate of merger and shall
cause such certificate to be delivered, as soon as practicable on the Closing
Date, to (i) the Delaware Secretary of State in accordance with Section 251(c)
of the Delaware General Corporation Law, and (ii) the New York Department of
State in accordance with Section 904 of the New York Business Corporation Law.
The Merger shall be effective at the time and on the date (the "Effective
Date"), not later than two business days after the Closing Date, specified in
such certificate of merger.
4.10. AFFILIATES
Seller and Purchaser shall cooperate and use their best efforts to
identify those persons who may be deemed to be "affiliates" of Seller within the
meaning of Rule 145 promulgated by the Commission under the Securities Act.
Seller shall use its reasonable best efforts to cause each person so identified
to deliver to Purchaser, no later than 30 days prior to the Effective Date, a
written Affiliate Agreement in the form attached hereto as Exhibit A.
4.11. SELLER EMPLOYEES; DIRECTORS AND MANAGEMENT; INDEMNIFICATION
(a) On and after the Effective Date (or as soon thereafter as
may be practicable), all persons who are employed by Seller and/or any of the
Seller Subsidiaries on such date ("Seller Employees") shall be employed on terms
and conditions (including benefits) that in the aggregate are no less favorable
(as determined by Purchaser in its reasonable discretion and good faith after
consultation with Seller) with respect to their employment by Purchaser and its
Subsidiaries after the Effective Date than those generally afforded to other
similarly situated employees of Purchaser or its Subsidiaries, subject to the
terms and conditions under which those employee benefits are made available to
such employees and provided that (i) for purposes of (A) determining eligibility
for and vesting of such employee benefits (and not for pension benefit accrual
purposes), (B) determining levels of short-term disability benefits, vacation
benefits and severance benefits under any severance pay arrangement (to the
extent any such arrangement applies to employees generally and gives credit for
length of service with Purchaser or a Purchaser Subsidiary), and (C) if
applicable, satisfying any waiting periods concerning "preexisting conditions,"
service with Seller or a Seller Subsidiary or any predecessor thereto prior to
the Effective Date shall be treated as service with an "employer" to the same
extent as if such persons had been employees of Purchaser, and (ii) copayments
and expenses paid by the Seller Employees prior to the Effective Date under the
Seller Plans that provide medical benefits shall be treated as if paid under
Purchaser's employee benefit plans that provide medical benefits for purposes of
determining satisfaction of copayment and deductible requirements under such
Purchaser plans, and provided, further, that this Section 4.11(a) shall not be
construed (A) to limit the ability of Purchaser and its Subsidiaries to
terminate the employment of any employee at any time for any reason or to review
employee benefits programs from time to time and to make such changes as they
deem appropriate or (B) to require Purchaser or its Subsidiaries to provide
employees or former employees of Seller or any of its Subsidiaries with
post-retirement medical benefits more favorable than those provided to new hires
at Purchaser. Purchaser agrees to honor, or to cause the appropriate Purchaser
Subsidiary
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to honor, in accordance with their terms all employment, severance and employee
benefit plans, contracts, agreements and arrangements, and understandings
Previously Disclosed, provided, however, that the foregoing shall not prevent
Purchaser from amending or terminating any such plan, contract, or agreement in
accordance with its terms and applicable law. The continued coverage of the
Seller Employees under the employee benefit plans maintained by Seller and/or
any Seller Subsidiary immediately prior to the Effective Date (the "Seller
Plans") during a transition period of no more than 6 months shall be deemed to
provide the Seller Employees with benefits that are no less favorable than those
offered to other employees of Purchaser and any Purchaser Subsidiary; provided,
that after the Effective Date there is no material reduction in the benefits
provided under the Seller Plans. No provision of this Section 4.11(a) shall
create any third party beneficiary rights in any employee or former employee of
Seller (including any beneficiary or dependent thereof) in respect of continued
employment (or resumed employment) or any other matter.
(b) The Merger shall be deemed to constitute a "change in
control" for purposes of each Seller Plan, employment, severance, consulting and
change in control agreement that, as Previously Disclosed to Purchaser, contains
"change in control" provisions. On and after the Effective Date, the individuals
Previously Disclosed to Purchaser (the "Previously Disclosed Individuals") shall
be deemed to have "good reason" or to have experienced a "triggering event" as
the case may be under their respective employment agreements with Seller, all as
Previously Disclosed to Purchaser.
(c) Prior to the Effective Date, Seller shall take all actions
that may be requested by Purchaser in writing upon advance notice of not less
than 45 days with respect to (i) causing one or more Seller Plans to terminate
as of the Effective Date or for benefit accrual and entitlements to cease as of
the Effective Date, (ii) causing the continuation on and after the Effective
Date of any contract, arrangement or insurance policy relating to any Seller
Plan for such period as may be requested by Purchaser, or (iii) cooperating with
Purchaser to facilitate the merger of any Seller Plan into any Purchaser Plan on
or following the Effective Date. ; provided, however, that with respect to any
such action: (1) Purchaser shall, at Seller's request, reimburse Seller for
reasonable out-of-pocket expenses incurred by Seller with respect to such
action; (2) such action shall have no material effect on the Seller Plans prior
to the Effective Date; (3) Seller shall not be required to take any action that
would result in a breach of its obligations under this Agreement; and (4) Seller
shall not be required to take any action that would result in a violation of the
terms of any Seller Plan or of any applicable law or regulation.
(d) Purchaser's Board of Directors shall take all requisite
action to elect, as of the Effective Date, Mr. T. Xxxxxxxxx Xxxxxxxxxx III as a
director of Purchaser, and, subject to the Board's fiduciary duties, shall
nominate Xx. Xxxxxxxxxx for re-election as a director of Purchaser for the next
succeeding three years.
(e) Purchaser shall cause Purchaser Bank's Board of Directors to
take all requisite action to elect, as of the Effective Date, Mr. T. Xxxxxxxxx
Xxxxxxxxxx III as a director of Purchaser Bank, and shall cause the board of
directors of Purchaser Bank, subject to the board's fiduciary duties, to
nominate Xx. Xxxxxxxxxx for re-election as a director of Purchaser Bank for the
next succeeding three years..
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(f) In the event of any threatened or actual claim, action,
suit, proceeding or investigation, whether civil, criminal or administrative,
including, without limitation, any such claim, action, suit, proceeding or
investigation in which any person who is now, or has been at any time prior to
the date of this Agreement, or who becomes prior to the Effective Date, a
director or officer of Seller (the "Indemnified Parties") is, or is threatened
to be, made a party based in whole or in part on, or arising in whole or in part
out of, or pertaining to (i) the fact that he is or was a director, officer or
employee of Seller, or any Seller Subsidiary or any of their respective
predecessors or (ii) this Agreement, the Plan of Merger, the Option Agreement or
any of the transactions contemplated hereby or thereby, whether in any case
asserted or arising before or after the Effective Date, the parties hereto agree
to cooperate and use their best efforts to defend against and respond thereto.
On and after the Effective Date, Purchaser shall indemnify and hold harmless, as
and to the fullest extent permitted by law, each such Indemnified Party against
any losses, claims, damages, liabilities, costs, expenses (including reasonable
attorney's fees and expenses in advance of the final disposition of any claim,
suit, proceeding or investigation to each Indemnified Party to the fullest
extent permitted by law upon receipt of any undertaking required by applicable
law), judgments, fines and amounts paid in settlement in connection with any
such threatened or actual claim, action, suit, proceeding or investigation, and
in the event of any such threatened or actual claim, action, suit, proceeding or
investigation (whether asserted or arising before or after the Effective Date),
the Indemnified Parties may retain counsel reasonably satisfactory to them after
consultation with Purchaser; provided, however, that (1) Purchaser shall have
the right to assume the defense thereof and upon such assumption Purchaser shall
not be liable to any Indemnified Party for any legal expenses of other counsel
or any other expenses subsequently incurred by any Indemnified Party in
connection with the defense thereof, except that if Purchaser elects not to
assume such defense or counsel for the Indemnified Parties reasonably advises
the Indemnified Parties that there are issues which raise conflicts of interest
between Purchaser and the Indemnified Parties, the Indemnified Parties may
retain counsel reasonably satisfactory to them after notification, and Purchaser
shall pay the reasonable fees and expenses of such counsel for the Indemnified
Parties, (2) Purchaser shall be obligated pursuant to this paragraph to pay for
only one firm of counsel for all Indemnified Parties, (3) Purchaser shall not be
liable for any settlement effected without its prior written consent (which
consent shall not be unreasonably withheld), and (4) Purchaser shall have no
obligation hereunder to any Indemnified Party when and if a court of competent
jurisdiction shall ultimately determine, and such determination shall have
become final and nonappealable, that indemnification of such Indemnified Party
in the manner contemplated hereby is prohibited by applicable law. Any
Indemnified Party wishing to claim Indemnification under this Section 4.11(f),
upon learning of any such claim, action, suit, proceeding or investigation,
shall promptly notify Purchaser thereof, provided that the failure of any
Indemnified Party to so notify Purchaser shall not relieve it of its obligations
hereunder except (and only) to the extent that such failure materially
prejudices Purchaser.
(g) Purchaser agrees that all rights to indemnification and all
limitations on liability existing in favor of the directors, officers and
employees of Seller and any Seller Subsidiary (the "Covered Parties") as
provided in their respective Certificates of Incorporation, Bylaws or similar
governing documents as in effect as of the date of this Agreement with respect
to matters occurring prior to the Effective Date shall survive the Merger and
shall continue in full force and effect, and shall be honored by such entities
or their respective successors as if they were the indemnifying party
thereunder, without any amendment thereto, for a period of six
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years from the Effective Date; provided, however, that all rights to
indemnification in respect of any claim ("Claim") asserted or made within such
period shall continue until the final disposition of such Claim; provided,
further, however, that nothing contained in this Section 4.11(g) shall be deemed
to preclude the liquidation, consolidation or merger of Seller or any Seller
Subsidiary, in which case all of such rights to indemnification and limitations
on liability shall be deemed to so survive and continue as an obligation of
Purchaser or the successor to Seller or the Seller Subsidiary notwithstanding
any such liquidation, consolidation or merger.
(h) Purchaser, from and after the Effective Date will use its
reasonable best efforts directly or indirectly to cause the persons who served
as directors or officers of Seller on or before the Effective Date to be covered
by Seller's existing directors' and officers' liability insurance policy
(provided that Purchaser may substitute therefor policies of at least the same
coverage and amounts containing terms and conditions which are not less
advantageous than such policy) but in no event shall any insured person be
entitled under this Section 4.11(h) to insurance coverage more favorable than
that provided to him or her in such capacities as of the date hereof with
respect to acts or omissions resulting from their service as such on or prior to
the Effective Date. Such insurance coverage, if available, shall commence on the
Effective Date and will be provided for a period of no less than four years
after the Effective Date; provided, however, that in no event shall Purchaser be
required to expend more than 200% of the current amount expended by Seller (the
"Insurance Amount") to maintain or procure insurance coverage pursuant hereto
and, provided, further, that the Insurance Amount shall be deemed reasonable for
purposes of this Section 4.11(h). Seller agrees to renew any such existing
insurance or to purchase any "discovery period" insurance provided for
thereunder at Purchaser's request.
(i) In the event Purchaser or any of its successors or assigns
(i) consolidates with or merges into any other person and shall not be the
continuing or surviving corporation or entity of such consolidation or merger,
or (ii) transfers or conveys all or substantially all of its properties and
assets to any person, then, and in each such case, to the extent necessary,
proper provision shall be made so that the successors and assigns of Purchaser
assume the obligations set forth in this section.
(j) The provisions of Section 4.11(f), (g), (h) and (i) are
intended to be for the benefit of, and shall be enforceable by, each Indemnified
Party and their respective heirs and representatives and shall be in addition to
the provisions regarding indemnification and insurance contained in the New York
Business Corporation Law, in contracts or otherwise.
4.12. SELLER SUBSIDIARIES
Seller undertakes and agrees that, if reasonably so requested by
Purchaser, it shall take all necessary action to facilitate the merger of Seller
Subsidiaries with Subsidiaries of Purchaser or the dissolution of such Seller
Subsidiaries effective at or after the Effective Date; provided however, that in
no event shall the Closing be delayed in order to facilitate any such merger or
dissolution and provided, further, however, that Seller shall not be required to
take any action that could adversely affect the qualification of the Merger as a
reorganization within the meaning of Section 368(a) of the Code.
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4.13. VOTING AGREEMENTS
Each director of Seller shall, within 30 days of the date hereof, enter
into a voting agreement with Purchaser pursuant to which such director agrees to
vote all shares of Seller Common Stock with respect to which such director shall
have voting rights on the record date for the special meeting of Seller in favor
of the Merger and further agrees not to dispose of any shares of Seller Common
Stock he or she holds as of the date of such voting agreement prior to the close
of business on such record date.
4.14. DIVIDENDS
After the date of this Agreement, each of Purchaser and Seller shall
coordinate with the other the declaration of any dividends in respect of
Purchaser Common Stock and Seller Common Stock and the record dates and payment
dates relating thereto, it being the intention of the parties hereto that
holders of Purchaser Common Stock or Seller Common Stock shall not receive two
dividends, or fail to receive one dividend, for any single calendar quarter with
respect to their shares of Purchaser Common Stock and/or Seller Common Stock and
any shares of Purchaser Common Stock any such holder receives in exchange
therefor in the Merger. Notwithstanding the foregoing limitation, the holders of
Seller Common Stock shall be entitled to receive dividends at the current level
on a pro rata basis for any period less than a calendar quarter up to the
Effective Date, provided that in determining the amount of any special dividend
on Seller Common Stock, Seller shall deduct the pro rata portion of any dividend
in respect of Purchaser Common Stock for the same period at the current rate to
be received by such holders with respect to such period, taking into account the
expected Exchange Ratio.
4.15. ADVISORY BOARDS
Promptly following the Effective Date, Purchaser shall cause (i) 10
members of Seller's Board of Directors, identified by Seller prior to the
Effective Date and reasonably acceptable to Purchaser to become members of the
Xxxxxx Valley Advisory Board of Purchaser Bank (the "Advisory Board"), (ii) Mr.
T. Xxxxxxxxx Xxxxxxxxxx III to be elected Chairman of the Advisory Board and
(iii) such members to be appointed or elected for a period of not less than 24
months after the Effective Date as members of the Advisory Board, the function
of which is to advise Purchaser Bank on business conditions and opportunities in
the Xxxxxx Valley region and on such other matters as Purchaser Bank may
reasonably or customarily request of such a Board. Each such advisory director
shall be paid for such services a fee according to a fee schedule to be
established by Purchaser; provided, however, that notwithstanding anything else
in this Section 4.15, no fee shall be paid for meetings of the Advisory Board
not actually attended; and Purchaser Bank shall have no obligation to continue
the services of any member of the Advisory Board who acts in a manner
detrimental to Purchaser Bank.
4.16. SECTION 16
Seller shall, reasonably promptly following the date hereof, provide to
Purchaser a list of (a) the directors and officers (as such terms are used under
Section 16 of the Exchange Act and the rules and regulations of the SEC
thereunder) of Seller, (b) the number of shares of Purchaser Common Stock and
options thereon expected to be received pursuant to the Merger, as
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appropriate, by each such officer or director on the Effective Date on account
of shares of Seller Common Stock, and options thereon, reasonably expected to be
held by such directors and officers immediately prior to the Effective Date and
(c) a description of the material terms of such options. Prior to the Effective
Date, (a) the Seller Board of Directors shall take such actions consistent with
the SEC's interpretive guidance to approve the disposition of Seller Common
Stock, and options thereon, by each director and officer of Seller for purposes
of Rule 16b-3(e) such that the deemed "sale" of such Seller Common Stock and
options thereon by such persons pursuant to the Merger shall be exempt from
liability pursuant to Section 16(b) of the Exchange Act, and (b) the Purchaser
Board of Directors shall take such action consistent with the SEC's interpretive
guidance to approve the acquisition of Purchaser Common Stock by each director
and officer of Purchaser for purposes of Rule 16b-3(d) under the Exchange Act
such that the deemed "purchase" of such Purchaser Common Stock, and options
thereon, by such persons pursuant to the Merger shall be exempt from liability
pursuant to Section 16(b) of the Exchange Act.
4.17. TAKEOVER LAWS
No party hereto shall take any action that would cause the transactions
contemplated by this Reorganization Agreement, the Plan of Merger or the Option
Agreement to be subject to the requirements imposed by any Takeover Law, and
each of them shall take all necessary steps within its control to exempt (or
ensure the continued exemption of) the transactions contemplated by this
Reorganization Agreement, the Plan of Merger and the Option Agreement from, or
if necessary challenge the validity or applicability of, any applicable Takeover
Law, as now or hereafter in effect.
ARTICLE 5.
CONDITIONS PRECEDENT
5.1. CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER, MERGER SUB AND
SELLER
The respective obligations of the parties to effect the Merger shall be
subject to satisfaction or waiver of the following conditions at or prior to the
Closing Date:
(a) The stockholder approval contemplated by Section 2.5
hereof, shall have been duly and validly taken;
(b) The parties hereto shall have received all regulatory
approvals required or mutually deemed necessary in connection with the
transactions contemplated by this Reorganization Agreement, the Plan of Merger
and the Bank Merger Agreement, all notice periods and waiting periods required
after the granting of any such approvals shall have passed and all conditions
contained in any such approval required to have been satisfied prior to
consummation of such transactions shall have been satisfied, provided, however,
that no such approval shall have imposed any condition or requirement that, in
the reasonable opinion of the Board of Directors of Purchaser or Seller so
materially and adversely affects the anticipated economic and business benefits
to Purchaser or Seller, respectively, of the transactions contemplated by this
Agreement as to render consummation of such transactions inadvisable;
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(c) The Registration Statement (including any post-effective
amendment thereto) shall be effective under the Securities Act, and no
proceeding shall be pending, or to the knowledge of Purchaser, threatened by the
Commission to suspend the effectiveness of such Registration Statement, and
Purchaser shall have received all state securities or "Blue Sky" permits or
other authorizations, or confirmations as to the availability of an exemption
from registration requirements as may be necessary;
(d) To the extent that any lease, license, loan, financing
agreement or other contract or agreement to which Seller or any Seller
Subsidiary is a party requires the consent of or waiver from the other party
thereto as a result of the transactions contemplated by this Agreement, such
consent or waiver shall have been obtained, unless the failure to obtain such
consents or waivers, individually or in the aggregate, would not have a Material
Adverse Effect on Seller;
(e) None of the parties hereto shall be subject to any order,
decree or injunction of a court or agency of competent jurisdiction which
enjoins or prohibits the consummation of the transactions contemplated by this
Reorganization Agreement and the Plan of Merger;
(f) The shares of Purchaser Common Stock that may be issued in
the Merger shall have been approved for listing on the NYSE, subject to official
notice of issuance; and
(g) Purchaser shall have received an opinion of Xxxxxx &
Xxxxxx, and Seller shall have received an opinion from Milbank, Tweed, Xxxxxx &
XxXxxx LLP, in each case in form and substance reasonably satisfactory to
Purchaser and Seller, as the case may be, dated as of the Effective Date,
substantially to the effect that, on the basis of facts, representations and
assumptions set forth or referred to in such opinion, the Merger will be treated
for federal income tax purposes as a reorganization or part of a reorganization
within the meaning of Section 368(a) of the Code, and that, provided the Merger
is such a reorganization:
(i) Seller, Purchaser and Merger Sub will each be a
party to such reorganization within the meaning of Section 368(b) of the Code;
(ii) No gain or loss will be recognized by Purchaser,
Merger Sub or Seller as a result of the Merger (except for amounts resulting
from any required change in accounting methods, any income and deferred gain
recognized pursuant to Treasury regulations issued under Section 1502 of the
Code, or other exceptions as set forth in such opinion);
(iii) No gain or loss will be recognized by Seller
shareholders with respect to shares of Purchaser Common Stock received in
exchange for all of their shares of Seller Common Stock;
(iv) The gain, if any, realized by Seller
shareholders who receive Purchaser Common Stock and cash (other than cash in
lieu of a fractional share interest of Purchaser Common Stock) in exchange for
their shares of Seller Common Stock, will be recognized by each such
shareholder, but in an amount not in excess of the amount of cash received. If
the exchange has the effect of the distribution of a dividend, then the amount
of the
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gain recognized shall be treated as a dividend. No loss will be recognized by
such Seller shareholders on the exchange;
(v) Each Seller shareholder's aggregate tax basis in
any shares of Purchaser Common Stock received in the transaction will be the
same as the aggregate tax basis of the shares of Seller Common Stock such
shareholder surrendered in the exchange therefor, decreased by the amount of any
cash received by the shareholder and increased by the amount of any income or
gain recognized by the shareholder in the exchange; and
(vi) Each Seller shareholder's holding period in any
shares of Purchaser Common Stock received in the transaction will, in each
instance, include the period during which the shares of Seller Common Stock
surrendered in exchange therefor were held, provided that such shares of Seller
Common Stock were held as capital assets by the shareholder on the Effective
Date.
In rendering the opinions described in this subsection (g), Xxxxxx &
Xxxxxx and Milbank, Tweed, Xxxxxx & XxXxxx LLP may rely on representations and
facts as provided by Purchaser and Seller, including, without limitation, the
representations set forth in Revenue Procedure 86-42, 1986-2 C.B. 722.
5.2. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER
The obligations of Seller to effect the Merger shall be subject to
satisfaction of the following additional conditions at or prior to the Closing
Date unless waived by Seller pursuant to Section 6.4 hereof:
(a) The representations and warranties of Purchaser and Merger
Sub set forth in Article 3 hereof shall be true and correct in all material
respects as of the date of this Reorganization Agreement and as of the Closing
Date as though made on and as of the Closing Date (or on the date when made in
the case of any representation and warranty which specifically relates to an
earlier date), except as otherwise contemplated by this Reorganization Agreement
or consented to in writing by Seller; provided, however, that (i) in determining
whether or not the condition contained in this paragraph (a) shall be satisfied,
no effect shall be given to any exceptions in such representations and
warranties relating to materiality or Material Adverse Effect and (ii) the
condition contained in this paragraph (a) shall be deemed to be satisfied unless
the failure of such representations and warranties to be so true and correct
constitute, individually or in the aggregate, a Material Adverse Effect on
Purchaser;
(b) Purchaser and Merger Sub shall have in all material
respects performed all obligations and complied with all covenants required by
this Reorganization Agreement and the Plan of Merger to be performed or complied
with at or prior to the Closing Date;
(c) Each of Purchaser and Merger Sub shall have delivered to
Seller a certificate, dated the Closing Date and signed by its respective
Chairman, CEO, Executive Vice President or Senior Vice President to the effect
that the conditions set forth in paragraphs (a) and (b) of this section have
been satisfied; and
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(d) T. Xxxxxxxxx Xxxxxxxxxx III shall have been elected as a
member of the Board of Directors of Purchaser and Purchaser Bank, effective upon
the Effective Date, and the Consulting Agreement between Xx. Xxxxxxxxxx and
Purchaser dated the date hereof shall remain in full force and effect unless
terminated in accordance with the terms thereof.
5.3. CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER AND MERGER SUB
The respective obligations of Purchaser and Merger Sub to effect the
Merger shall be subject to satisfaction of the following additional conditions
at or prior to the Closing Date unless waived by Purchaser pursuant to Section
6.4 hereof:
(a) The representations and warranties of Seller set forth in
Article 2 hereof shall be true and correct in all material respects as of the
Closing Date as though made on and as of the Closing Date (or on the date when
made in the case of any representation and warranty which specifically relates
to an earlier date), except as affected by the transactions contemplated by this
Reorganization Agreement or consented to in writing by Purchaser; provided,
however, that (i) in determining whether or not the condition contained in this
paragraph (a) shall be satisfied, no effect shall be given to any exceptions in
such representations and warranties relating to materiality or Material Adverse
Effect and (ii) the condition contained in this paragraph (a) shall be deemed to
be satisfied unless the failure of such representations and warranties to be so
true and correct constitute, individually or in the aggregate, a Material
Adverse Effect on Seller;
(b) Seller shall have in all material respects performed all
obligations and complied with all covenants required by this Reorganization
Agreement and the Plan of Merger to be performed or complied with at or prior to
the Closing Date; and
(c) Seller shall have delivered to Purchaser and Merger Sub a
certificate, dated the Closing Date and signed by its Chairman, President and
Chief Executive Officer or any Executive Vice President to the effect that the
conditions set forth in paragraphs (a) and (b) of this section have been
satisfied.
ARTICLE 6.
TERMINATION, WAIVER AND AMENDMENT
6.1. TERMINATION
This Reorganization Agreement and the Plan of Merger may be terminated,
either before or after approval by the shareholders of Seller:
(a) At any time on or prior to the Effective Date, by the
mutual consent in writing of the parties hereto;
(b) At any time on or prior to the Closing Date, by Purchaser
in writing, if Seller has, or by Seller in writing, if Purchaser or Merger Sub
has, in any material respect, breached (i) any covenant or agreement contained
herein or in the Plan of Merger or (ii) any representation or warranty contained
herein, and in either case (x) such breach has not been cured by 30 days after
the date on which written notice of such breach is given to the party
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committing such breach and (y) such breach would entitle the non-breaching party
not to consummate the transactions contemplated hereby under Article 5 hereof;
(c) At any time, by any party hereto in writing, if the
applications for prior approval referred to in Section 4.3 hereof have been
finally denied, and the time period for appeals and requests for reconsideration
has run, or if any governmental entity of competent jurisdiction shall have
issued a final nonappealable order enjoining or otherwise prohibiting the
Merger;
(d) At any time, by any party hereto in writing, if the
shareholders of Seller do not approve the transactions contemplated herein upon
a vote held at the special meeting duly called for that purpose or any
adjournment thereof;
(e) By any party hereto in writing, if the Closing Date has
not occurred by the close of business on June 30, 2001 unless the failure of the
Closing to occur by such date shall be due to the failure of the party seeking
to terminate this Agreement to perform or observe the covenants and agreements
set forth herein;
(f) By Seller, upon the execution by Seller of a definitive
agreement relating to a Takeover Proposal (as defined in Section 4.7(b)(13)),
provided that (i) Seller shall have complied with its obligations under Section
4.7(b)(13) hereof, (ii) the Board of Directors of Seller shall have determined,
after having received the advice of outside legal counsel to Seller and the
advice of Seller's financial advisor, that such action is necessary for the
Board of Directors to act in a manner consistent with its fiduciary duties under
applicable law and (iii) concurrent with its notification of termination, Seller
will wire to an account designated by Purchaser $24 million in immediately
available funds, less Total Profit as defined in the Option Agreement, if any,
theretofor actually realized by Purchaser, whereupon the option granted to
Purchaser pursuant to the Option Agreement shall lapse (including with respect
to shares as to which an exercise has been made under the Stock Option Agreement
but which shares have not yet been issued); or
(g) At any time, by Seller, if there is a "change of control"
of Purchaser (as defined below). A "change of control" shall mean any business
combination involving Purchaser following which the shareholders of Purchaser
immediately before the business combination own less than 60% of the shares of
the survivor.
6.2. EFFECT OF TERMINATION
In the event this Reorganization Agreement and the Plan of Merger is
terminated pursuant to Section 6.1 hereof, this Agreement and the Plan of Merger
shall become void and have no effect, except that (i) the provisions relating to
confidentiality and expenses set forth in Sections 4.5 and 7.1 hereof,
respectively, shall survive any such termination and (ii) a termination pursuant
to Section 6.1(b)(i) or (b)(ii) shall not relieve the breaching party from
liability for an uncured willful breach of such covenant or agreement or
representation or warranty giving rise to such termination.
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42
6.3. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
All representations, warranties and covenants in this Reorganization
Agreement and the Plan of Merger or in any instrument delivered pursuant hereto
or thereto shall expire on, and be terminated and extinguished at, the Effective
Date other than covenants that by their terms are to survive or be performed
after the Effective Date; provided, that no such representations, warranties or
covenants shall be deemed to be terminated or extinguished so as to deprive
Purchaser, Merger Sub or Seller (or any director, officer or controlling person
thereof) of any defense in law or equity which otherwise would be available
against the claims of any person, including, without limitation, any shareholder
or former shareholder of either Purchaser or Seller, the aforesaid
representations, warranties and covenants being material inducements to the
consummation by Purchaser, Merger Sub and Seller of the transactions
contemplated herein.
6.4. WAIVER
Except where not permitted by law, Purchaser and Seller, respectively,
by written instrument signed by an executive officer of such party, may at any
time (whether before or after approval of this Reorganization Agreement and the
Plan of Merger by the shareholders of Purchaser and Seller) extend the time for
the performance of any of the obligations or other acts of Seller, on the one
hand, or Purchaser or Merger Sub, on the other hand, and may waive (i) any
inaccuracies of such parties in the representations or warranties contained in
this Agreement, the Plan of Merger or any document delivered pursuant hereto or
thereto, (ii) compliance with any of the covenants, undertakings or agreements
of such parties, or satisfaction of any of the conditions precedent to its
obligations, contained herein or in the Plan of Merger or (iii) the performance
by such parties of any of its obligations set out herein or therein; provided,
however, that no such waiver, or amendment or supplement contemplated by Section
6.5, executed after approval of this Reorganization Agreement and the Plan of
Merger by the shareholders of Seller shall, without the further approval
thereof, change the amount or kind of Merger Consideration.
6.5. AMENDMENT OR SUPPLEMENT
This Reorganization Agreement and the Plan of Merger may be amended or
supplemented at any time only by mutual agreement of the parties hereto or
thereto. Any such amendment or supplement must be in writing and approved by
their respective Boards of Directors and/or officers authorized thereby and
shall be subject to the proviso in Section 6.4 hereto.
ARTICLE 7.
MISCELLANEOUS
7.1. EXPENSES
Each party hereto shall bear and pay all costs and expenses incurred by
it in connection with the transactions contemplated in this Reorganization
Agreement, including fees and expenses of its own financial consultants,
accountants and counsel, except that Purchaser and Seller each shall bear and
pay 50% of all printing and mailing costs and filing fees associated with the
Registration Statement and the Proxy Statement.
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43
7.2. ENTIRE AGREEMENT
This Reorganization Agreement, the Plan of Merger and the Option
Agreement contain the entire agreement between the parties with respect to the
transactions contemplated hereunder and thereunder and supersede all prior
arrangements or understandings with respect thereto, written or oral, other than
documents referred to herein or therein and the Confidentiality Agreement, which
shall survive the execution and delivery of this Agreement, except as
inconsistent herewith. The terms and conditions of this Reorganization Agreement
and the Plan of Merger shall inure to the benefit of and be binding upon the
parties hereto and thereto and their respective successors. Except as
specifically set forth herein (including as set forth in Section 4.11(j) hereof
and, with respect to the Previously Disclosed Individuals, Section 4.11(b)
hereof), or in the Plan of Merger, nothing in this Reorganization Agreement or
the Plan of Merger, expressed or implied, is intended to confer upon any party,
other than the parties hereto and thereto, and their respective successors, any
rights, remedies, obligations or liabilities. This Reorganization Agreement and
the Plan of Merger, taken together, shall constitute a plan of reorganization
within the meaning of Section 368 of the Code.
7.3. NO ASSIGNMENT
No party hereto may assign any of its rights or obligations under this
Reorganization Agreement to any other person.
7.4. ALTERNATIVE STRUCTURE
Notwithstanding any provision of this Reorganization Agreement to the
contrary, Purchaser may, with the written consent of Seller, which shall not be
unreasonably withheld, elect, subject to the filing of all necessary
applications and the receipt of all required regulatory approvals, to modify the
structure of the acquisition of Seller and the Seller Subsidiaries set forth
herein, provided, that (i) the federal income tax consequences of any
transactions created by such modification shall not be other than those set
forth in Section 5.1(g) hereof, (ii) the consideration to be paid to the holders
of the Seller Common Stock is not thereby changed in kind or reduced in amount
as a result of such modification and (iii) such modification will not materially
delay or jeopardize the consummation of the transactions contemplated by the
Reorganization Agreement and the Plan of Merger.
7.5. NOTICES
All notices or other communications which are required or permitted
hereunder shall be in writing and sufficient if delivered personally or sent and
received by facsimile transmission or overnight express or by registered or
certified mail, postage prepaid, addressed as follows:
If to Seller:
Premier National Bancorp, Inc.
X.X. Xxx 000
Xxxxx 00
Xxxxxxxxxxxxx, Xxx Xxxx 00000
Attn: T. Xxxxxxxxx Xxxxxxxxxx III, Chairman
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44
Facsimile No: 000-000-0000
With a required copy to:
Milbank, Tweed, Xxxxxx & XxXxxx LLP
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxx X'Xxxx, Esq.
Facsimile No: 000-000-0000
If to Purchaser or Merger Sub:
M&T Bank Corporation
One M&T Plaza
Buffalo, New York 14240
Attn: Xxxxxxx Xxxxx, Executive Vice President and Chief
Financial Officer
Facsimile No: 000-000-0000
With a required copy to:
M&T Bank Corporation
One M&T Plaza
Buffalo, New York 14240
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile No: 000-000-0000
and to:
Xxxxxx & Xxxxxx
000 Xxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxx Xxxxxx, Esquire
Facsimile No: 000-000-0000
7.6. CAPTIONS
The captions contained in this Reorganization Agreement are for
reference purposes only and are not part of this Reorganization Agreement.
7.7. COUNTERPARTS
This Reorganization Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
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45
7.8. GOVERNING LAW
This Reorganization Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and entirely to be performed within such jurisdiction, except to the extent
federal law may be applicable.
7.9. INVALID PROVISIONS
If any provision of this Agreement is held to be illegal, invalid or
unenforceable under any present or future law or order, and if the rights or
obligations of any party hereto under this Agreement will not be materially and
adversely affected thereby, (i) such provision will be fully severable, (ii)
this Agreement will be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part hereof, and (iii) the
remaining provision of this Agreement will remain in full force and effect and
will not be affected by illegal, invalid or unenforceable provision or by its
severance herefrom.
7.10. ENFORCEMENT OF AGREEMENT
The parties hereto agree that irreparable damage would occur in the
event that any of the provisions of this Agreement was not performed in
accordance with its specified terms or was otherwise breached. It is accordingly
agreed that the parties shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions hereof in any court of competent jurisdiction, this being in addition
to any other remedy to which they are entitled at law or in equity.
[Remainder of this page left intentionally blank.]
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46
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Reorganization Agreement to be executed in counterparts
by their duly authorized officers and their corporate seal to be hereunto
affixed and attested by their officers thereunto duly authorized, all as of the
day and year first above written.
Attest M&T BANK CORPORATION
/s/ Xxxxxxx X. Xxxxxxxx By /s/ Xxxxxxx X. Xxxxx
------------------------- ----------------------------
Xxxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxx
Asst. Corporate Secretary Executive Vice President and Chief Financial
Officer
(SEAL)
Attest OLYMPIA FINANCIAL CORP.
/s/ Xxxxxxx X. Xxxxxxxx By /s/ Xxxxxxx X. Xxxxx
------------------------- ----------------------------
Xxxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxx
Asst. Corporate Secretary Executive Vice President and Chief Financial
Officer
(SEAL)
Attest PREMIER NATIONAL BANCORP, INC.
/s/ Xxxx X. Xxxxxx By /s/ T. Xxxxxxxxx Xxxxxxxxxx III
------------------------- -------------------------------
Xxxx X. Xxxxxx T. Xxxxxxxxx Xxxxxxxxxx III
Treasurer and Chief Chairman
Financial Officer
(SEAL)
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47
ANNEX A
AGREEMENT AND PLAN OF MERGER OF
PREMIER NATIONAL BANCORP, INC.
WITH AND INTO OLYMPIA FINANCIAL CORP.
AGREEMENT AND PLAN OF MERGER ("Plan of Merger") dated as of July 9,
2000 by and between Premier National Bancorp Inc. ("Seller"), a New York
corporation having its principal executive office at X.X. Xxx 000, Xxxxx 00
Xxxxxxxxxxxxx, XX 00000 and Olympia Financial Corp. ("Merger Sub"), a Delaware
corporation and a direct wholly owned subsidiary of Purchaser having its
registered office at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx, and joined in by
M&T Bank Corporation ("Purchaser"), a New York corporation having its principal
executive office at Xxx X&X Xxxxx, Xxxxxxx, Xxx Xxxx 00000.
WITNESSETH
WHEREAS, the respective Boards of Directors of Seller, Merger Sub and
Purchaser deem the merger of Seller with and into Merger Sub, under and pursuant
to the terms and conditions herein set forth or referred to, desirable and in
the best interests of the respective corporations and their respective
shareholders, and the respective Boards of Directors of Seller, Merger Sub and
Purchaser have adopted resolutions approving this Plan of Merger and an
Agreement and Plan of Reorganization dated of even date herewith
("Reorganization Agreement"); and
WHEREAS, the parties hereto desire that Seller shall be acquired by
Purchaser through the merger of Seller with and into Merger Sub, with Merger Sub
as the surviving corporation, subject to the terms and conditions of this Plan
of Merger and the Reorganization Agreement; and
WHEREAS, the parties hereto intend that the Merger shall qualify as a
reorganization under Section 368(a) of the Internal Revenue Code of 1986, as
amended ("the Code").
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto do hereby agree as follows:
48
ARTICLE 1.
MERGER
Subject to the terms and conditions of this Plan of Merger, at the
Effective Time (as hereinafter defined), Seller shall be merged with and into
Merger Sub, pursuant to the provisions of, and with the effect provided in the
New York Business Corporation Law and the Delaware General Corporation Law (said
transaction being hereinafter referred to as the "Merger"). At the Effective
Time, the separate existence of Seller shall cease and Merger Sub, as the
surviving entity, shall continue unaffected and unimpaired by the Merger.
(Merger Sub as existing at and after the Effective Time being hereinafter
sometimes referred to as the "Surviving Corporation").
ARTICLE 2.
CERTIFICATE OF INCORPORATION AND BY-LAWS
Subject to Section 4.11(g) of the Reorganization Agreement, the
Certificate of Incorporation and the Bylaws of Merger Sub in effect immediately
prior to the Effective Time shall be the Certificate of Incorporation and the
Bylaws of the Surviving Corporation, in each case until amended in accordance
with applicable law.
ARTICLE 3.
BOARD OF DIRECTORS
The directors and officers of Merger Sub immediately prior to the
Effective Time shall be the directors and officers of the Surviving Corporation,
each to hold office in accordance with the Certificate of Incorporation and
Bylaws of the Surviving Corporation.
ARTICLE 4.
CAPITAL
At the Effective Time, all of the shares of capital stock of Merger Sub
issued and outstanding immediately prior to the Effective Time shall remain
outstanding and unchanged by virtue of the Merger and shall constitute all of
the issued and outstanding shares of capital stock of the Surviving Corporation.
ARTICLE 5.
CONVERSION AND EXCHANGE OF SELLER
SHARES; FRACTIONAL SHARE INTERESTS
1. At the Effective Time, each share of the common stock of Seller, par
value $0.80 per share ("Seller Common Stock"), issued and outstanding
immediately prior to the Effective Time (except as provided in Section 2 of this
Article 5, and subject to Sections 5 and 7 of this Article 5), shall, by virtue
of the Merger, automatically and without any action on the part of the holder
thereof, become and be converted into, at the election of the holder as provided
in and subject to the limitations set forth in this Article 5, either (i) the
right to receive $21 in cash without interest (the "Cash Consideration") or (ii)
an amount of common stock of Purchaser, par value $5.00 per share ("Purchaser
Common Stock") equal to the quotient (the "Exchange Ratio") of (A) $21 divided
by (B) the Market Value (as defined below) of a share of Purchaser Common Stock
(the "Stock Consideration"). For purposes of this Plan of Merger, the "Market
Value" of the
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Purchaser Common Stock shall be the average of the average of the high and low
prices of the Purchaser Stock on the New York Stock Exchange-Composite
Transactions List (as reported by The Wall Street Journal or, if not reported
therein, another comparable authoritative source) for the 10 trading days
immediately preceding the date on which the Effective Time occurs. The Cash
Consideration and the Stock Consideration are sometimes referred to herein
collectively as the "Merger Consideration."
2. At the Effective Time, all shares of Seller Common Stock held in the
treasury of Seller or owned beneficially by any Subsidiary of Seller other than
in a fiduciary capacity ("Trust Account Shares") or in connection with a debt
previously contracted ("DPC Shares") and all shares of Seller Common Stock owned
by Purchaser or owned beneficially by any subsidiary of Purchaser other than
Trust Account Shares and DPC Shares shall be canceled and no cash, stock or
other property shall be delivered in exchange therefor.
3. (a)An election form (an "Election Form") and other appropriate and
customary transmittal materials, which shall specify that delivery shall be
effected, and risk of loss and title to the certificates theretofore
representing Seller Common Stock ("Certificates") shall pass, only upon proper
delivery of such Certificates to a bank or trust company designated by Purchaser
and reasonably satisfactory to Seller (the "Exchange Agent") in such form as
Seller and Purchaser shall mutually agree shall be mailed on the Mailing Date
(as defined below) to each holder of record of shares of Seller Common Stock
(other than holders of shares of Seller Common Stock to be cancelled as provided
in Section 2 of this Article 5) as of a record date which shall be the same date
as the record date for eligibility to vote on the Merger. The "Mailing Date"
shall be the date on which proxy materials relating to the Merger are mailed to
holders of shares of Seller Common Stock.
(b) Each Election Form shall entitle the holder of shares of
Seller Common Stock (or the beneficial owner through appropriate and customary
documentation and instructions) to (i) elect to receive the Cash Consideration
for all of such holder's shares (a "Cash Election"), (ii) elect to receive the
Stock Consideration for all of such holder's shares (a "Stock Election"), (iii)
elect to receive the Cash Consideration with respect to some of such holder's
shares and the Stock Consideration with respect to such holder's remaining
shares (a "Mixed Election"), or (iv) make no election or to indicate that such
holder has no preference as to the receipt of the Cash Consideration or the
Stock Consideration (a "Non-Election"). Holders of record of shares of Seller
Common Stock who hold such shares as nominees, trustees or in other
representative capacities (a "Representative") may submit multiple Election
Forms; provided, that such Representative certifies that each such Election Form
covers all the shares of Seller Common Stock held by that Representative for a
particular beneficial owner. Shares of Seller Common Stock as to which a Cash
Election has been made are referred to herein as "Cash Election Shares." Shares
of Seller Common Stock as to which a Stock Election has been made are referred
to herein as "Stock Election Shares." Shares of Seller Common Stock as to which
no election or a Non-Election has been made are referred to as "Non-Election
Shares." The aggregate number of shares of Seller Common Stock with respect to
which a Stock Election has been made is referred to herein as the "Stock
Election Number."
(c) To be effective, a properly completed Election Form shall
be submitted to the Exchange Agent on or before 5:00 p.m. New York City time on
the 30th calendar day following
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the Mailing Date (or such other time and date as Seller and Purchaser may
mutually agree) (the "Election Deadline"). An election shall have been properly
made only if the Exchange Agent shall have actually received a properly
completed Election Form by the Election Deadline. An Election Form shall be
deemed properly completed only if accompanied by one or more Certificates (or
customary affidavits and, if required by Purchaser pursuant to Section 8 of this
Article 5, indemnification regarding the loss or destruction of such
Certificates or the guaranteed delivery of such Certificates) representing all
shares of Seller Common Stock covered by such Election Form, together with duly
executed transmittal materials included with the Election Form. Any Seller
shareholder may at any time prior to the Election Deadline change his or her
election by written notice received by the Exchange Agent prior to the Election
Deadline accompanied by a properly completed and signed revised Election Form.
Any Seller shareholder may, at any time prior to the Election Deadline, revoke
his or her election by written notice received by the Exchange Agent prior to
the Election Deadline or by withdrawal prior to the Election Deadline of his or
her Certificates, or of the guarantee of delivery of such Certificates,
previously deposited with the Exchange Agent. All elections shall be revoked
automatically if the Exchange Agent is notified in writing by Purchaser and
Seller that this Plan of Merger has been terminated. If a shareholder either (i)
does not submit a properly completed Election Form by the Election Deadline, or
(ii) revokes its Election Form and does not thereafter duly deliver a properly
completed Election Form to the Exchange Agent prior to the Election Deadline,
the shares of Seller Common Stock held by such shareholder shall be designated
"Non-Election Shares." Purchaser shall cause the Certificates representing
Seller Common Stock described in (ii) to be promptly returned without charge to
the person submitting the Election Form upon written request to that effect from
the person who submitted the Election Form. Subject to the terms of this Plan of
Merger and of the Election Form, the Exchange Agent shall have reasonable
discretion to determine whether any election, revocation or change has been
properly or timely made and to disregard immaterial defects in any Election
Form, and any good faith decisions of the Exchange Agent regarding such matters
shall be binding and conclusive.
(d) Notwithstanding any other provision contained in this Plan
of Merger, 50% of the total number of shares of Seller Common Stock outstanding
on the date hereof, less the aggregate number of shares of Seller Common Stock
acquired by Purchaser pursuant to the Reorganization Agreement or Seller prior
to the Effective Time (the "Stock Conversion Number") shall be converted into
the Stock Consideration and the remaining outstanding shares of Seller Common
Stock shall be converted into the Cash Consideration (in each case, excluding
shares of Seller Common Stock to be cancelled as provided in Section 2 of this
Article 5 (the shares remaining outstanding after such exclusion constituting,
for purposes of this Plan of Merger the "Outstanding Seller Shares"); provided,
however, that for federal income tax purposes, it is intended that the Merger
should qualify as a reorganization under the provisions of Section 368(a) of the
Code and, notwithstanding anything to the contrary contained herein, in order
that the Merger will not fail to satisfy continuity of interest requirements
under applicable federal income tax principles relating to reorganizations under
Section 368(a) of the Code, as reasonably determined by Xxxxxx & Xxxxxx and
Milbank, Tweed, Xxxxxx & XxXxxx LLP, Purchaser shall increase the number of
outstanding Seller shares that will be converted into the Stock Consideration
and reduce the number of outstanding Seller shares that will be converted into
the right to receive the Cash Consideration.
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(e) Within five (5) business days after the later to occur of
the Election Deadline or the Effective Time, Purchaser shall cause the Exchange
Agent to effect the allocation among holders of Seller Common Stock of rights to
receive the Cash Consideration and the Stock Consideration as follows:
(i) If the Stock Election Number exceeds the Stock
Conversion Number, then all Cash Election Shares and all
Non-Election Shares shall be converted into the right to
receive the Cash Consideration, and, subject to Section 7 of
this Article 5, each holder of Stock Election Shares will be
entitled to receive the Stock Consideration in respect of that
number of Stock Election Shares equal to the product obtained
by multiplying (x) the number of Stock Election Shares held by
such holder by (y) a fraction, the numerator of which is the
Stock Conversion Number and the denominator of which is the
Stock Election Number, with the remaining number of such
holder's Stock Election Shares being converted into the right
to receive the Cash Consideration;
(ii) If the Stock Election Number is less than the
Stock Conversion Number (the amount by which the Stock
Conversion Number exceeds the Stock Election Number being
referred to herein as the "Shortfall Number"), then all Stock
Election Shares shall be converted into the right to receive
the Stock Consideration and the Non-Election Shares and Cash
Election Shares shall be treated in the following manner:
(A) if the Shortfall Number is less than or
equal to the number of Non-Election Shares, then all
Cash Election Shares shall be converted into the
right to receive the Cash Consideration and, subject
to Section 7 of Article 5, each holder of
Non-Election Shares shall receive the Stock
Consideration in respect of that number of
Non-Election Shares equal to the product obtained by
multiplying (x) the number of Non-Election Shares
held by such holder by (y) a fraction, the numerator
of which is the Shortfall Number and the denominator
of which is the total number of Non-Election Shares,
with the remaining number of such holder's
Non-Election Shares being converted into the right to
receive the Cash Consideration; or
(B) if the Shortfall Number exceeds the
number of Non-Election Shares, then all Non-Election
Shares shall be converted into the right to receive
the Stock Consideration, and, subject to Section 7 of
this Article 5, each holder of Cash Election Shares
shall receive the Stock Consideration in respect of
that number of Cash Election Shares equal to the
product obtained by multiplying (x) the number of
Cash Election Shares held by such holder by (y) a
fraction, the numerator of which is the amount by
which (1) the Shortfall Number exceeds (2) the total
number of Non-Election Shares and the denominator of
which is the total number of Cash Election Shares,
with the remaining number of such holder's Cash
Election Shares being converted into the right to
receive the Cash Consideration.
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For purposes of this Section 3(e), if Purchaser is obligated to
increase the number of Outstanding Seller Shares to be converted into shares of
Purchaser Common Stock as a result of the application of the last clause of
Section 3(d) above, then the higher number shall be substituted for the Stock
Conversion Number in the calculations set forth in this Section 3(e).
(f) All of the shares of Seller Common Stock converted into
and exchangeable for the Merger Consideration pursuant to this Article 5 shall
no longer be outstanding and shall automatically be cancelled and cease to exist
as of the Effective Time, subject, however, to the Purchaser's obligation to
pay, in accordance with and subject to the limitations of Section 4.14 of the
Reorganization Agreement, any dividends which may have been declared by Seller
on such shares of Purchaser Common Stock in accordance with the terms of this
Plan of Merger and which remained unpaid as of the Effective Time. Each
Certificate previously representing any such shares of Seller Common Stock shall
thereafter represent the right to receive the Merger Consideration pursuant to
this Article 5, as allocated among the holders of Seller Common Stock in
accordance with this Section 3.
(g) At the Effective Time, Purchaser shall deposit, or shall
cause to be deposited, with the Exchange Agent, for exchange in accordance with
this Section 3, certificates representing the aggregate number of shares of
Purchaser Common Stock into which the outstanding shares of Seller Common Stock
shall be converted pursuant to this Article 5, and cash in the amount of the
aggregate Cash Consideration and the aggregate amount of cash to be paid in lieu
of fractional shares. As soon as practicable after the Effective Time, the
Exchange Agent shall mail to all holders of record of Seller Common Stock who
did not previously submit completed Election Forms letters of transmittal
specifying the procedures for the delivery of such holders' certificates to the
Exchange Agent and describing the Merger Consideration such holders will receive
therefor. Also as soon as practicable after the Effective Time (with allowance
for the mailing of the letters of transmittal described in the preceding
sentence), the Exchange Agent shall distribute to holders of shares of Seller
Common Stock, upon surrender to the Exchange Agent (to the extent not previously
surrendered with an Election Form) of one or more Certificates for cancellation,
(i) a certificate representing that number of whole shares of Purchaser Common
Stock, if any, that such holder has the right to receive pursuant to this Plan
of Merger, and (ii) a check for an amount equal to the cash, if any, which such
holder has the right to receive pursuant to this Plan of Merger (including any
cash in lieu of any fractional shares of Purchaser Common Stock to which such
holder is entitled pursuant to Section 7 hereof and any dividends or other
distributions to which such holder is entitled pursuant to the provisions set
forth below). In no event shall the holder of any such surrendered Certificates
be entitled to receive interest on any of the Cash Consideration or cash in lieu
of fractional share interests to be received in the Merger. If a check is to be
issued in the name of a person other than the person in whose name the
Certificates surrendered for exchange therefor are registered, it shall be a
condition of the exchange that the person requesting such exchange shall pay to
the Exchange Agent any transfer taxes required by reason of issuance of such
check to a person other than the registered holder of the Certificates
surrendered, or shall establish to the reasonable satisfaction of the Exchange
Agent that such tax has been paid or is not applicable. No dividends or other
distributions declared after the Effective Time with respect to Purchaser Common
Stock shall be paid to the holder of any unsurrendered Certificate until the
holder thereof shall surrender such Certificate in accordance with this Article
5. After the surrender of a Certificate in accordance with this Article 5, the
record holder thereof shall be entitled to receive any such dividends or other
distributions, without any interest thereon,
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which theretofore had become payable with respect to shares of Purchaser Common
Stock, if any, represented by such Certificate. Certificates surrendered for
exchange by any person who is an "affiliate" of Seller for purposes of Rule
145(c) under the Securities Act of 1933, as amended, shall not be exchanged for
certificates representing shares of Purchaser Common Stock until Purchaser has
received the written agreement of such person contemplated by Section 4.10 of
the Reorganization Agreement. If any certificate for shares of Purchaser Common
Stock is to be issued in a name other than that in which a Certificate
surrendered for exchange is issued, the Certificate so surrendered shall be
properly endorsed and otherwise in proper form for transfer and the person
requesting such exchange shall affix any requisite stock transfer tax stamps to
the Certificate surrendered or provide funds for their purchase or establish to
the reasonable satisfaction of Purchaser or its agent that such taxes have been
paid or are not payable. Any portion of the Merger Consideration which remains
undistributed to the shareholders of Seller for six months after the Effective
Time shall be delivered to Purchaser, upon demand, and any shareholders of
Seller who have not theretofore complied with this Article 5 shall thereafter
look only to Purchaser (subject to abandoned property, escheat and other similar
laws) as general creditors for payment of their claim for Purchaser Common Stock
or Cash Consideration and any cash in lieu of fractional shares of Purchaser
Common Stock and any dividends or distributions with respect to Seller Common
Stock. The Exchange Agent shall send notice to the shareholders of Seller who
have not submitted their Certificates 90 days after the Effective Time, and
again 120 days after such time.
4. At the Effective Time, the stock transfer books of Seller shall be
closed and no transfer of Seller Common Stock shall thereafter be made or
recognized. If, after the Effective Time, Certificates representing such shares
are presented for transfer to the Exchange Agent, they shall be cancelled and
exchanged for the Merger Consideration as provided in this Article 5. Any other
provision of this Plan of Merger notwithstanding, neither Purchaser or its agent
nor any party to the Merger shall be liable to a holder of Seller Common Stock
for any amount paid or properly delivered in good faith to a public official
pursuant to any applicable abandoned property, escheat or similar law.
5. In the event that prior to the Effective Time, the outstanding
shares of Purchaser Common Stock shall have been increased, decreased or changed
into or exchanged for a different number or kind of shares or securities by
reorganization, recapitalization, reclassification, stock dividend, stock split
or other like changes in Purchaser's capitalization, then an appropriate and
proportionate adjustment shall be made to the Stock Consideration (including the
Exchange Ratio) and the formulas contained in Section 6 of this Article 5.
6. (a) At the Effective Time, each option to acquire Seller Common
Stock or stock appreciation rights with respect to Seller Common Stock (each a
"Seller Option") granted under the Community Bancorp, Inc. 1988 Non-Qualified
Stock Option Plan, the Community Bancorp, Inc. Incentive Stock Option Plan, the
Progressive Bank, Inc. 1997 Employee Stock Option Plan, the Progressive Bank,
Inc. Non-Qualified Stock Option Plans for Directors, the Pawling Savings Bank
Incentive Stock Option Plan, the Premier National Bancorp, Inc. 1995 Incentive
Stock Plan and the Fishkill National Corporation Incentive Stock Option Plan
(collectively, the "Seller Stock Option Plans") which is outstanding immediately
prior to the Effective Time, whether vested or unvested, will be assumed by
Purchaser. Each Seller Option so assumed by Purchaser shall continue to have,
and be subject to, the same terms and conditions set
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forth in the Seller Stock Option Plan (and any agreement) under which it was
granted and as in existence immediately prior to the Effective Time, except that
(i) such Seller Option shall be exercisable (when vested) for that number of
whole shares of Purchaser Common Stock equal to the product of the number of
shares of Seller Common Stock covered by the Seller Option multiplied by the
Exchange Ratio; provided that any fractional shares of Purchaser Common Stock
resulting from such multiplication shall be rounded down to the nearest share;
and (ii) the exercise price per share of Purchaser Common Stock shall be equal
to the exercise price per share of Seller Common Stock of such Seller Option
divided by the Exchange Ratio; provided that such exercise price shall be
rounded up to the nearest cent. Notwithstanding the foregoing, the adjustment
provided herein will comply with the adjustment provisions in the Seller Stock
Option Plans and with respect to any Seller Options that are "incentive stock
options" (as defined in Section 422 of the Code) shall be and is intended to be
effected in a manner which is consistent with Section 424(a) of the Code.
(b) As soon as practicable after the Effective Time, Purchaser
shall deliver to the persons who hold stock options or stock appreciation rights
granted under the Seller Stock Option Plans notices describing the effect of the
Merger on stock options or stock appreciation rights granted under the Seller
Stock Option Plans.
(c) Purchaser shall take all corporate action necessary to
reserve for issuance a sufficient number of shares of Purchaser Common Stock for
delivery under the Seller Stock Option Plans as adjusted in accordance with this
Section. As soon as practicable after the Effective Time, Purchaser shall file a
registration statement on Form S-8 promulgated by the SEC under the Securities
Act (or any successor or other appropriate form) with respect to the Purchaser
Common Stock subject to such options or stock appreciation rights and shall use
its best efforts to maintain the effectiveness of such registration statement or
registration statements (and maintain the current status of the prospectus or
prospectuses contained therein) for so long as such options or stock
appreciation rights remain outstanding. With respect to those individuals who
subsequent to the Merger will be subject to the reporting requirements under
Section 16(a) of the Exchange Act, where applicable, Purchaser shall administer
the Seller Stock Option Plans in a manner that complies with Rule 16b-3
promulgated under the Exchange Act.
7. Notwithstanding any other provision hereof, each holder of shares of
Seller Common Stock who would otherwise have been entitled to receive pursuant
to this Article 5 a fraction of a share of Purchaser Common Stock (after taking
into account all Certificates delivered by such holder) shall receive, in lieu
thereof, cash in an amount equal to such fraction of a share of Purchaser Common
Stock multiplied by the Market Value of Purchaser Common Stock. No such holder
shall be entitled to dividends, voting rights or any other shareholder right in
respect of such fractional share.
8. In the event any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
such Certificate to be lost, stolen or destroyed and, if required by Purchaser,
the posting by such person of a bond in such amount as Purchaser may reasonably
direct as indemnity against any claim that may be made against it with respect
to such Certificate, the Exchange Agent will issue in exchange for such lost,
stolen or destroyed Certificate the shares of Purchaser Common Stock
constituting the Stock Consideration and cash
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in lieu of fractional shares and/or the cash constituting the Cash Consideration
deliverable in respect thereof pursuant to this Plan of Merger.
ARTICLE 6.
EFFECTIVE TIME OF THE MERGER
A certificate or articles of merger evidencing the transactions
contemplated herein shall be delivered to the New York Department of State and
the Delaware Secretary of State for filing as provided in the Reorganization
Agreement. The Merger shall be effective at the time and on the date specified
in such certificate or articles of merger (such date and time being herein
referred to as the "Effective Time").
ARTICLE 7.
CONDITIONS PRECEDENT
The obligations of Purchaser, Merger Sub and Seller to effect the
Merger as herein provided shall be subject to satisfaction, unless duly waived,
of the conditions to the obligations of such person set forth in Article 5 of
the Reorganization Agreement.
ARTICLE 8.
TERMINATION
Anything contained in the Plan of Merger to the contrary
notwithstanding, and notwithstanding adoption hereof by the shareholders of
Seller or Merger Sub, this Plan of Merger may be terminated and the Merger
abandoned as provided in the Reorganization Agreement.
ARTICLE 9.
MISCELLANEOUS
1. This Plan of Merger may be amended or supplemented at any time prior
to the Effective Time by mutual agreement of Merger Sub, Purchaser and Seller.
Any such amendment or supplement must be in writing and approved by their
respective Boards of Directors and/or by officers authorized thereby and shall
be subject to the proviso in Section 6.4 of the Reorganization Agreement.
2. Any notice or other communication required or permitted under this
Plan of Merger shall be given, and shall be effective, in accordance with the
provisions of the Reorganization Agreement.
3. The headings of the several Articles herein are inserted for
convenience of reference only and are not intended to be a part of or to affect
the meaning or interpretation of this Plan of Merger.
4. This Plan of Merger shall be governed by and construed in accordance
with the laws of New York and Delaware applicable to the internal affairs of
Seller and Merger Sub.
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56
5. This Plan of Merger, taken together with the Reorganization
Agreement, shall constitute a "plan of reorganization" within the meaning of
Section 1.368-2(g) of the Treasury Regulations promulgated under the Code.
[Remainder of this page left intentionally blank.]
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IN WITNESS WHEREOF, the parties hereto, intending to be
legally bound hereby, have caused this Plan of Merger to be executed in
counterparts by their duly authorized officers and attested by their officers
thereunto duly authorized, all as of the day and year first above written.
Attest M&T BANK CORPORATION
/s/ Xxxxxxx X. Xxxxxxxx By /s/ Xxxxxxx X. Xxxxx
------------------------- -------------------------------
Xxxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxx
Asst. Corporate Secretary Executive Vice President and Chief Financial
Officer
(SEAL)
Attest OLYMPIA FINANCIAL CORP.
/s/ Xxxxxxx X. Xxxxxxxx By /s/ Xxxxxxx X. Xxxxx
------------------------- -------------------------------
Xxxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxx
Asst. Corporate Secretary Executive Vice President and Chief Financial
Officer
(SEAL)
Attest PREMIER NATIONAL BANCORP, INC.
/s/ Xxxx X. Xxxxxx By /s/ T. Xxxxxxxxx Xxxxxxxxxx III
------------------------- -------------------------------
Xxxx X. Xxxxxx T. Xxxxxxxxx Xxxxxxxxxx III
Treasurer and Chief Chairman
Financial Officer
(SEAL)
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