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PREAMBLE | 1 | |||
ARTICLE 1 TRANSACTIONS AND TERMS OF MERGER | 2 | |||
1.1 Merger. | 2 | |||
1.2 Time and Place of Closing. | 2 | |||
1.3 Effective Time. | 2 | |||
1.4 Restructure of Transaction. | 2 | |||
ARTICLE 2 TERMS OF MERGER | 3 | |||
2.1 Charter. | 3 | |||
2.2 Bylaws. | 3 | |||
2.3 Directors and Officers. | 3 | |||
ARTICLE 3 MANNER OF CONVERTING SHARES | 4 | |||
3.1 Conversion of Shares. | 4 | |||
3.2 Anti-Dilution Provisions. | 5 | |||
3.3 Appraisal | 5 | |||
3.4 Fractional Shares. | 5 | |||
3.5 Conversion of Stock Rights. | 6 | |||
ARTICLE 4 EXCHANGE OF SHARES | 7 | |||
4.1 Exchange Procedures. | 7 | |||
4.2 Rights of Former TFC Stockholders. | 9 | |||
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF TFC | 9 | |||
5.1 Organization, Standing, and Power. | 9 | |||
5.2 Authority of TFC; No Breach By Agreement. | 9 | |||
5.3 Capital Stock. | 10 | |||
5.4 TFC Subsidiaries. | 11 | |||
5.5 Exchange Act Filings; Securities Offerings; Financial Statements. | 12 | |||
5.6 Absence of Undisclosed Liabilities. | 13 | |||
5.7 Absence of Certain Changes or Events. | 14 | |||
5.8 Tax Matters. | 14 | |||
5.9 Allowance for Possible Loan Losses; Loan and Investment Portfolio, etc. | 17 | |||
5.10 Assets. | 18 | |||
5.11 Intellectual Property. | 18 | |||
5.12 Environmental Matters. | 19 | |||
5.13 Compliance with Laws. | 20 | |||
5.14 Labor Relations. | 21 | |||
5.15 Employee Benefit Plans. | 22 | |||
5.16 Material Contracts. | 27 | |||
5.17 Privacy of Customer Information. | 27 | |||
5.18 Legal Proceedings. | 28 | |||
5.19 Reports. | 28 |
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5.20 Books and Records. | 29 | |||
5.21 Loans to Executive Officers and Directors. | 29 | |||
5.22 Independence of Directors. | 29 | |||
5.23 Tax and Regulatory Matters; Consents. | 29 | |||
5.24 State Takeover Laws. | 29 | |||
5.25 Stockholders’ Support Agreements. | 30 | |||
5.26 Brokers and Finders; Opinion of Financial Advisor. | 30 | |||
5.27 Board Recommendation. | 30 | |||
5.28 Statements True and Correct. | 30 | |||
ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF CBAC | 31 | |||
6.1 Organization, Standing, and Power. | 31 | |||
6.2 Authority; No Breach By Agreement. | 31 | |||
6.3 Capital Stock. | 32 | |||
6.4 CBAC Subsidiaries. | 33 | |||
6.5 Exchange Act Filings; Financial Statements. | 33 | |||
6.6 Absence of Undisclosed Liabilities. | 34 | |||
6.7 Absence of Certain Changes or Events. | 35 | |||
6.8 Tax Matters. | 35 | |||
6.9 Compliance with Laws. | 37 | |||
6.10 Employee Benefit Plans. | 38 | |||
6.11 Material Contracts. | 42 | |||
6.12 Legal Proceedings. | 42 | |||
6.13 Reports. | 43 | |||
6.14 Independence of Directors. | 43 | |||
6.15 Tax and Regulatory Matters; Consents. | 43 | |||
6.16 Brokers and Finders; Opinion of Financial Advisor. | 43 | |||
6.17 Board Recommendation. | 44 | |||
6.18 Statements True and Correct | 44 | |||
6.19 CBAC Trust Fund. | 45 | |||
6.20 Prior Business Operations. | 45 | |||
ARTICLE 7 CONDUCT OF BUSINESS PENDING CONSUMMATION | 45 | |||
7.1 Affirmative Covenants of TFC. | 45 | |||
7.2 Negative Covenants of the Parties. | 45 | |||
7.3 Affirmative Covenants of CBAC. | 48 | |||
7.4 Adverse Changes in Condition. | 48 | |||
7.5 Reports. | 49 | |||
7.6 Claims Against Trust Account. | 49 | |||
ARTICLE 8 ADDITIONAL AGREEMENTS | 50 | |||
8.1 Registration Statement; Joint Proxy Statement. | 50 | |||
8.2 Stockholder Approvals. | 51 | |||
8.3 Other Offers, etc. | 52 | |||
8.4 Consents of Regulatory Authorities. | 53 | |||
8.5 Agreement as to Efforts to Consummate. | 53 | |||
8.6 Investigation and Confidentiality. | 54 |
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8.7 Press Releases. | 55 | |||
8.8 Charter Provisions. | 55 | |||
8.9 Employee Benefits and Contracts. | 55 | |||
8.10 Indemnification. | 56 | |||
8.11 Employee Non-Solicitation. | 58 | |||
8.12 Net Operating Losses. | 58 | |||
ARTICLE 9 CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE | 58 | |||
9.1 Conditions to Obligations of Each Party. | 58 | |||
9.2 Conditions to Obligations of CBAC. | 60 | |||
9.3 Conditions to Obligations of TFC. | 61 | |||
ARTICLE 10 TERMINATION | 62 | |||
10.1 Termination. | 62 | |||
10.2 Effect of Termination. | 65 | |||
10.3 Non-Survival of Representations and Covenants. | 65 | |||
ARTICLE 11 MISCELLANEOUS | 65 | |||
11.1 Definitions. | 65 | |||
11.2 Expenses. | 78 | |||
11.3 Brokers, Finders and Financial Advisors. | 80 | |||
11.4 Entire Agreement. | 81 | |||
11.5 Amendments. | 81 | |||
11.6 Waivers. | 81 | |||
11.7 Assignment. | 82 | |||
11.8 Notices. | 82 | |||
11.9 Governing Law. | 83 | |||
11.10 Counterparts. | 83 | |||
11.11 Captions; Articles and Sections. | 83 | |||
11.12 Interpretations. | 83 | |||
11.13 Enforcement of Agreement. | 83 | |||
11.14 Severability. | 84 | |||
11.15 No Third Party Beneficiaries. | 84 | |||
11.16 Force Majeure. | 84 |
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Exhibit | Description | |
A | Certificate of Incorporation of the Surviving Corporation | |
B | Bylaws of the Surviving Corporation | |
C | Form of Support Agreement | |
D | Form of Retention Agreement of Members of the Surviving Corporation’s Board of Directors | |
E | List of Affiliates | |
F | Form of Affiliate Agreement | |
G | Form of TFC’s Legal Opinion | |
H | Form of CBAC’s Legal Opinion |
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TRANSACTIONS AND TERMS OF MERGER
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TERMS OF MERGER
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MANNER OF CONVERTING SHARES
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EXCHANGE OF SHARES
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REPRESENTATIONS AND WARRANTIES OF TFC
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REPRESENTATIONS AND WARRANTIES OF CBAC
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CONDUCT OF BUSINESS PENDING CONSUMMATION
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ADDITIONAL AGREEMENTS
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CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE
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TERMINATION
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MISCELLANEOUS
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Term | Section | |||
Additional Termination Fee | 11.2 | |||
Agreement | Introduction | |||
Allowance | 5.9 | (a) | ||
BHCA | 5.1 | |||
CBAC | Introduction | |||
CBAC Benefit Plan | 6.10 | (a) | ||
CBAC Benefit Plans | 6.10 | (a) | ||
CBAC Contracts | 6.11 | (a) | ||
CBAC Exchange Act Reports | 6.5 | (a) | ||
CBAC ERISA Plan | 6.10 | (a) |
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Term | Section | |||
CBAC Other Plan | 6.10 | (a) | ||
CBAC Tax Opinion | 9.2 | (g) | ||
CERCLA | 11.1 | (a) | ||
Claims | 7.6 | |||
Closing | 1.2 | |||
Conversion Rights | 3.1 | (a) | ||
Customer Information | 5.17 | (a) | ||
Dissenting Shares | 3.3 | |||
DOL | 5.15 | (b) | ||
Effective Time | 1.3 | |||
Exchange Agent | 4.1 | (a) | ||
Exchange Ratio | 3.1 | (b) | ||
Excluded Shares | 3.1 | (b) | ||
GLB Act | 11.1 | (a) | ||
Indemnified Party | 8.10 | (a) | ||
IRS | 5.2 | (c) | ||
Maximum Amount | 8.10 | (b) | ||
Merger | Preamble | |||
Merger Consideration | 3.1 | (b) | ||
Other Plan | 5.15 | (a) | ||
RCRA | 11.1 | (a) | ||
Support Agreements | 5.25 | |||
Termination Fee | 11.2 | (b) | ||
TFC | Introduction | |||
TFC Benefits Plan | 5.15 | (a) | ||
TFC Benefits Plans | 5.15 | (a) | ||
TFC Contracts | 5.16 | (a) | ||
TFC ERISA Plan | 5.15 | (a) | ||
TFC Exchange Act Reports | 5.5 | (a) | ||
TFC Rights | 3.5 | |||
TFC Tax Opinion | 9.3 | (e) | ||
Takeover Laws | 5.23 | |||
Trust Fund | 6.19 | |||
WARN Act | 5.14 | (c) |
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then, in the case of a termination as set forth in subsections (b)(i) or (b)(iv) of this Section 11.2, CBAC shall pay to TFC, and, in the case of a termination as set forth in subsection (b)(ii) or (b)(iii) of this Section 11.2, TFC shall pay to CBAC, an amount equal to $500,000 (the “Termination Fee”); provided however, that an additional termination fee (the “Additional Termination Fee”) of $1,200,000 if, and only if, an Acquisition Transaction involving the Party liable for the payment of the Termination Fee is consummated within 12 months of such termination and such Additional Termination Fee shall only be payable at the time of consummation of such Acquisition Transaction. Each Party hereby waives any right to set-off or counterclaim against such amount. If the Termination Fee shall be payable pursuant to subsection (b)(i) or (b)(ii) of this Section 11.2 in connection with a termination pursuant to Section 10.1(c)(iii) or 10.1(f), the Termination Fee shall be paid in same-day funds at or prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of a definitive agreement with respect to such Acquisition Transaction. If the Termination Fee shall be payable pursuant to subsection (b)(iii) of this Section 11.2, the Termination Fee shall be paid in same-day funds upon the earlier of (i) the execution of a definitive agreement with respect to such Acquisition Transaction or (ii) two business days from the date of termination of this Agreement. If the Termination Fee shall be payable pursuant to subsection (b)(i) or (b)(ii) of this Section 11.2 in connection with a termination pursuant to Section 10.1(b) or subsection (b)(iv) of this Section 11.2, the Termination Fee shall be paid in same-day funds at or prior to the termination of this Agreement. |
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CBAC: | Community Bankers Acquisition Corp. | |
9912 Georgetown Pike, Suite D-203 | ||
Great Falls, Virginia 22066 | ||
Attention: Gary A. Simanson | ||
Copy to Counsel: | Nelson Mullins Riley & Scarborough LLP | |
Suite 900 | ||
101 Constitution Avenue, N.W. | ||
Washington, D.C. 20001 | ||
Facsimile Number: (202) 712-2856 | ||
Attention: Jonathan H. Talcott | ||
and | ||
Ellenoff Grossman & Schole LLP | ||
1627 K Street, N.W., 10th Floor | ||
Washington, D.C. 20006 | ||
Facsimile Number: (240) 491-3980 | ||
Attention: Kathleen L. Cerveny | ||
TFC: | TransCommunity Financial Corporation | |
4235 Inns Lake Drive | ||
Glen Allen, Virginia 23060 | ||
Attention: Bruce B. Nolte |
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Copy to Counsel: | Williams Mullen | |
2 James Center | ||
1021 East Cary Street | ||
Richmond, Virginia 23218 | ||
Facsimile Number: (804) 783-6507 | ||
Attention: Wayne A. Whitham |
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COMMUNITY BANKERS ACQUISITION CORP. | ||
/s/ Gary A. Simanson | ||
By: Gary A. Simanson | ||
Its: President & Chief Executive Officer | ||
TRANSCOMMUNITY FINANCIAL CORPORATION | ||
/s/ Bruce B. Nolte | ||
By: Bruce B. Nolte | ||
Its: President & CEO |
CERTIFICATE OF INCORPORATION
OF
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9912 Georgetown Pike, Ste D203
Great Falls, VA 22066
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OF
OFFICES
MEETINGS OF STOCKHOLDERS
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BOARD OF DIRECTORS
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NOTICES
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OFFICERS
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STOCK
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GENERAL PROVISIONS
INDEMNIFICATION
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SUPPORT AGREEMENT
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Community Bankers Acquisition Corp. | ||||
By: | ||||
Name: | ||||
Title: | ||||
TransCommunity Financial Corporation | ||||
By: | ||||
Name: | ||||
Title: | ||||
“Shareholder” | ||||||
Name: | ||||||
Address: | ||||||
Number of Shares Beneficially Owned and Capacity of Ownership: | ||||||
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To CBAC/Surviving Corporation: | Community Bankers Acquisition Corp. | |||
9912 Georgetown Pike, Suite D-203 | ||||
Great Falls, Virginia 22066 | ||||
Attention: Gary A. Simanson | ||||
To Director: | See signature page of this Agreement |
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Community Bankers Acquisition Corp. | ||||
By: | ||||
Name: | ||||
Title: | ||||
Director | ||||
Name: | ||||
Address: | ||||
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M. Andrew McLean
Christopher G. Miller
Bruce B. Nolte
Troy A. Peery, Jr.
John W. Pretlow, Jr.
Stuart C. Siegel
John J. Sponski
Patrick J. Tewell
John C. Watkins
Robin Traywick Williams
Jack C. Zoeller
9912 Georgetown Pike, Suite D-203
Great Falls, Virginia 22066
, 2007
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, 2007
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Very truly yours, | ||||
By: | ||||
Name: | ||||
Its: |
TRANSCOMMUNITY FINANCIAL CORPORATION COUNSEL
COMMUNITY BANKERS ACQUISITION CORP. COUNSEL