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EXHIBIT 2.2
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STOCK OPTION AGREEMENT
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THIS STOCK OPTION AGREEMENT ("Option Agreement") dated as
of the 22nd day of February, 2001, by and between WESBANCO,
INC., a West Virginia corporation ("Wesbanco") and AMERICAN
BANCORPORATION, an Ohio corporation ("American").
WITNESSETH:
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WHEREAS, the Boards of Directors of Wesbanco and American
have approved an Agreement and Plan of Merger ("Merger
Agreement"), which contemplates the merger of American with AB
Corporation, a West Virginia corporation and wholly-owned
subsidiary of Wesbanco ("AB"), with AB continuing as the
surviving corporation;
WHEREAS, as a condition to Wesbanco's entry into the Merger
Agreement and to induce such entry, American has agreed to grant
to Wesbanco the option set forth herein to purchase authorized
but unissued shares of common stock, without par value, of
American ("American Common Stock");
NOW, THEREFORE, in consideration of the premises herein
contained, the parties agree as follows:
1. Definitions. Capitalized terms defined in the Merger
Agreement and used herein shall have the same meanings as in the
Merger Agreement.
2. Grant of Option. Subject to the terms and conditions
set forth herein, American hereby grants to Wesbanco an option
("Option") to purchase up to 622,805 shares of American Common
Stock, at a price of $18.00 per share (the "Option Price")
payable in cash as provided in Section 4 hereof; provided,
however, that in the event American issues or agrees to issue
any shares of American Common Stock (other than as permitted
under the Merger Agreement) at a price less than $18.00 per
share (as adjusted pursuant to Section 6 hereof), the exercise
price shall be equal to such lesser price.
3. Exercise of Option.
a. Provided that Wesbanco is not in
material breach of the agreements and covenants
contained in the Merger Agreement, Wesbanco may
exercise the Option, in whole or in part, at any
time or from time to time if a Purchase Event (as
defined below) shall have occurred and be
continuing; provided that to the extent the Option
shall not have been exercised, it shall terminate
and be of no further force and effect (i) on the
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Effective Date of the Merger or (ii) upon
termination of the Merger Agreement in accordance
with the provisions thereof (other than a
termination resulting from a willful breach by
American of Section 8.21(d) of the Merger
Agreement or, following the occurrence of a
Purchase Event, failure of American's shareholders
to approve the Merger Agreement by the vote
required under applicable law), or (iii) six
months after termination of the Merger Agreement
due to a willful breach by American of Section
8.21(d) of the Merger Agreement or, following the
occurrence of a Purchase Event, failure of
American's shareholders to approve the Merger
Agreement by the vote required under applicable
law; and provided further that any such exercise
shall be subject to compliance with applicable
provisions of law.
b. As used herein, a "Purchase Event" shall
mean any of the following events or transactions
occurring after the date hereof:
(i) any person (other than
American, Wheeling National Bank (the
"American Subsidiary"), Wesbanco or any
affiliate of Wesbanco) shall have
commenced a bona fide tender or
exchange offer to purchase shares of
American Common Stock such that upon
consummation of such offer such person
would own or control 15% or more of the
outstanding shares of American Common Stock;
(ii) any person (other than
American or the American Subsidiary),
other than in connection with a
transaction to which Wesbanco has given
its prior written consent, shall have
filed an application or notice with any
federal or state regulatory agency for
clearance or approval, to (x) merge or
consolidate, or enter into any similar
transaction, with American or the
American Subsidiary, (y) purchase,
lease or otherwise acquire all or
substantially all of the assets of
American or the American Subsidiary or
(z) purchase or otherwise acquire
(including by way of merger,
consolidation, share exchange or any
similar transaction) securities
representing 51% or more of the voting
power of American or the American
Subsidiary;
(iii) any person (other than
American, the American Subsidiary, the
American Subsidiary in a fiduciary
capacity, Wesbanco, affiliates of
Wesbanco or subsidiaries of Wesbanco in
a fiduciary capacity) shall have
acquired after the date hereof
beneficial ownership or the right to
acquire beneficial ownership of 15% or
more of the outstanding shares of
American Common Stock (the term
"beneficial ownership" for purposes of
this Option
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Agreement having the
meaning assigned thereto in Section
13(d) of the Exchange Act and the
regulations promulgated thereunder);
(iv) any person (other than
American or the American Subsidiary)
shall have made a bona fide proposal to
American by public announcement or
written communication that is or
becomes the subject of public
disclosure to (x) acquire American or
the American Subsidiary by merger,
consolidation, purchase of all or
substantially all of its assets or any
other similar transaction, or (y) make
an offer described in clause (i) above; or
(v) American shall have willfully
breached Section 8.21(d) of the Merger
Agreement, which breach would entitle
Wesbanco to terminate such Merger
Agreement and such breach shall not
have been cured prior to the Notice
Date (as defined below).
If more than one of the transactions giving rise to a Purchase
Event under this Section 3(b) is undertaken or effected, then
all such transactions shall give rise only to one Purchase
Event, which Purchase Event shall be deemed continuing for all
purposes hereunder until all such transactions are abandoned.
As used in this Option Agreement, "person" shall have the
meanings specified in Sections 3(a)(9) and 13(d)(3) of the
Exchange Act.
c. In the event Wesbanco wishes to exercise
the Option, it shall send to American a written
notice (the date of which being herein referred to
as "Notice Date") specifying (i) the total number
of shares it will purchase pursuant to such
exercise, and (ii) a place and date not earlier
than three business days nor later than 60
business days from the Notice Date for the closing
of such purchase ("Closing Date"); provided that
if prior notification to or approval of any
federal or state regulatory agency is required in
connection with such purchase, Wesbanco shall
promptly file the required notice or application
for approval and shall expeditiously process the
same and the period of time that otherwise would
run pursuant to this sentence shall run instead
from the date on which any required notification
period has expired or been terminated or such
approval has been obtained and any requisite
waiting period shall have passed.
4. Payment and Delivery of Certificates.
a. At the closing referred to in Section
3(c) hereof, Wesbanco shall pay to American the
aggregate purchase price for the shares of
American Common Stock purchased pursuant to the
exercise of the Option
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in immediately available funds by a wire transfer
to a bank account designated by American.
b. At such closing, simultaneously with the
delivery of cash as provided in subsection (a),
American shall deliver to Wesbanco a certificate
or certificates representing the number of shares
of American Common Stock purchased by Wesbanco,
and Wesbanco shall deliver to American a letter
agreeing that Wesbanco will not offer to sell or
otherwise dispose of such shares in violation of
applicable law or the provisions of this Option
Agreement.
c. Certificates for American Common Stock
delivered at a closing hereunder may be endorsed
with a restrictive legend which shall read
substantially as follows:
"The transfer of the shares
represented by this certificate is
subject to certain provisions of an
agreement between the registered holder
hereof and American Bancorporation and
to resale restrictions arising under
the Securities Act of 1933, as amended,
a copy of which agreement is on file at
the principal office of American
Bancorporation. A copy of such
agreement will be provided to the
holder hereof without charge upon
receipt by American Bancorporation of a
written request."
It is understood and agreed that the above legend shall be
removed by delivery of substitute certificate(s) without such
legend if Wesbanco shall have delivered to American a copy of a
letter from the staff of the Securities and Exchange Commission,
or an opinion of counsel, in form and substance reasonably
satisfactory to American, to the effect that such legend is not
required for purposes of the Securities Act.
5. Representations. American hereby represents, warrants
and covenants to Wesbanco as follows:
a. American shall at all times maintain
sufficient authorized but unissued shares of
American Common Stock so that the Option may be
exercised without authorization of additional
shares of American Common Stock.
b. The shares to be issued upon due
exercise, in whole or in part, of the Option, when
paid for as provided herein, will be duly
authorized, validly issued, fully paid and
nonassessable.
6. Adjustment Upon Changes in Capitalization. In the
event of any change in American Common Stock by reason of stock
dividends, split-ups, mergers, recapitalizations, combinations,
exchanges of shares or the like, the type and number of shares
subject to the
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Option, and the purchase price per share, as the
case may be, shall be adjusted appropriately. In the event that
any additional shares of American Common Stock are issued or
otherwise become outstanding after the date of this Option
Agreement (other than pursuant to this Option Agreement), the
number of shares of American Common Stock subject to the Option
shall be adjusted so that, after such issuance, it equals 19.9%
of the number of shares of American Common Stock then issued and
outstanding without giving effect to any shares subject or
issued pursuant to the Option. Nothing contained in this
Section 6 shall be deemed to authorize American to breach any
provision of the Merger Agreement.
7. Registration Rights. American shall, if requested by
Wesbanco, as expeditiously as possible file a registration
statement on a form of general use under the Securities Act if
necessary in order to permit the sale or other disposition of
the shares of American Common Stock that have been acquired upon
exercise of the Option in accordance with the intended method of
sale or other disposition requested by Wesbanco. Wesbanco shall
provide all information reasonably requested by American for
inclusion in any registration statement to be filed hereunder.
American will use its best efforts to cause such registration
statement first to become effective and then to remain effective
for such period not in excess of 270 days from the day such
registration statement first becomes effective as may be
reasonably necessary to effect such sales or other dispositions.
In no event shall American be required to effect more than two
registrations hereunder. All expenses of registrations
hereunder shall be borne equally by American and Wesbanco. The
filing of any registration statement hereunder may be delayed
for such period of time as may reasonably be required to
facilitate any public distribution by American of American
Common Stock. If requested by Wesbanco, in connection with any
such registration, American will become a party to any
underwriting agreement relating to the sale of such shares, but
only to the extent of obligating itself in respect of
representations, warranties, indemnities and other agreements
customarily included in such underwriting agreements. Upon
receiving any request from Wesbanco or assignee thereof under
this Section 7, American agrees to send a copy thereof to
Wesbanco and to any assignee thereof known to American, in each
case by promptly mailing the same, postage prepaid, to the
address of record of the persons entitled to receive such
copies.
8. Severability. If any term, provision, covenant or
restriction contained in this Option Agreement is held by a
court or a federal or state regulatory agency of competent
jurisdiction to be invalid, void or unenforceable, the remainder
of the terms, provisions and covenants and restrictions
contained in this Option Agreement shall remain in full force
and effect, and shall in no way be affected, impaired or
invalidated. If for any reason such court or regulatory agency
determines that the Option will not permit the holder to acquire
the full number of shares of American Common Stock provided in
Section 2 hereof (as adjusted pursuant to Section 6 hereof), it
is the express intention of American to allow the holder to
acquire such lesser number of shares as may be permissible,
without any amendment or modification hereof.
9. Put-Back Rights.
a. Upon the consummation of any Purchase
Event described in Section 3(b)(ii) or (v) hereof
such that (i) a merger, consolidation, purchase,
lease or acquisition of all or substantially all
of the assets of American
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purchase or other
acquisition of securities representing 51% or more
of the voting power of American or the American
Subsidiary has been consummated, or (ii) a willful
breach under Section 8.21(d) of the Merger
Agreement has occurred so that Wesbanco would be
entitled to terminate the Merger Agreement, and
prior to the expiration of the Option in
accordance with the terms hereof, at the request
of Wesbanco, American shall repurchase the Option
from Wesbanco at a price (the "Repurchase Price")
equal to the difference between the market/offer
price (as defined below) for shares of American
Common Stock and the Option Price, multiplied by
the number of shares for which the Option being
surrendered hereunder may then be exercised but
only if the market/offer price is greater than the
Option Price (the market/offer price is defined as
the higher of the price per share at which a
tender offer or exchange offer for 51% or more of
the voting securities of American has been made
and consummated, the price per share actually paid
by any third party pursuant to an agreement that
has been consummated whereby American has been
merged, consolidated with or otherwise acquired by
a third party, and the highest closing price for
American Common Stock within the four-month period
immediately preceding the date Wesbanco gives
written notice of the required repurchase of the
Option pursuant to this Section 9). In the event
that an exchange offer is made or an agreement is
entered into for a merger or consolidation
involving consideration other than cash, the value
of the securities or other property issuable or
deliverable in exchange for American Common shall
be determined by a nationally recognized
investment banking firm mutually acceptable to the
parties hereto.
b. Wesbanco may exercise its right to
require American to repurchase the Option pursuant
to this Section 9 by giving American written
notice of its exercise of its repurchase right in
accordance with the provisions of this Section 9.
Subject to the last proviso of paragraph 9(c)
below, as promptly as practicable, and in any
event within five business days after the receipt
of such notice or notices relating thereto,
American shall deliver or cause to be delivered to
Wesbanco the Repurchase Price for the Option or
the portion thereof which American is not then
prohibited under applicable law and regulation
from so delivering.
c. To the extent that American is
prohibited under applicable law or regulation, or
as a result of administrative or judicial action,
from repurchasing the Option in full, American
shall immediately so notify Wesbanco and
thereafter deliver or cause to be delivered, from
time to time, to Wesbanco, as appropriate, the
portion of the Repurchase Price which it is no
longer prohibited from delivering, within five
business days after the date on which American is
no longer so prohibited, provided, however, that
to the extent that American is at the time and
after the expiration of 12 months, so prohibited
from delivering to Wesbanco, the Repurchase Price,
in full (and American hereby undertakes to use its
best efforts to receive all
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required regulatory and legal approvals as promptly
as practicable), American shall deliver to Wesbanco a
new Option evidencing the right of Wesbanco to purchase
that number of shares of American Common Stock obtained
by multiplying the number of shares of American
Common Stock for which the Option may at such time
be exercised by a fraction, the numerator of which
is the Repurchase Price less the portion thereof
(if any) theretofore delivered to the Holder and
the denominator of which is the Repurchase Price,
and American shall have no further obligation to
repurchase such new Option; and provided, further,
that upon receipt of such notice and until five
days thereafter Wesbanco may revoke its notice of
repurchase of the Option by written notice to
American at its principal office stating that
Wesbanco elects to revoke its election to exercise
its rights to require American to repurchase the
Option, whereupon American will promptly deliver
to Wesbanco the Option and American shall have no
further obligation to repurchase such Option.
10. First Refusal. If at any time during the eighteen
months immediately following the first purchase of shares of
American Common Stock pursuant to the Option, Wesbanco shall
desire to sell, assign, transfer or otherwise dispose of all or
any of the shares of American Common Stock acquired by it
pursuant to the Option other than in accordance with the put-
back rights in Section 9 hereof, it shall give American written
notice of the proposed transaction ("Offeror's Notice"),
identifying the proposed transferee and setting forth the terms
of the proposed transaction. An Offeror's Notice shall be
deemed an offer by Wesbanco to American, which may be accepted
within ten business days of the receipt of such Offeror's
Notice, on the same terms and conditions and at the same price
at which Wesbanco is proposing to transfer such shares to a
third party. Settlement for any shares purchased by American
shall be within 15 business days of the date of the acceptance
of the offer and the purchase price shall be paid to Wesbanco in
immediately available funds; provided that if prior notification
to or approval of any federal or state regulatory authority is
required in connection with such purchase, American shall
promptly file the required notice or application for approval
and shall expeditiously process the same and the period of time
that otherwise would run pursuant to this sentence shall run
instead from the date on which any required notification period
has expired or been terminated or such approval has been
obtained and any requisite waiting period shall have passed. In
the event of the failure or refusal of American to purchase all
of the shares covered by the Offeror's Notice or any applicable
regulatory authority shall disapprove American's proposed
purchase of such shares, Wesbanco may sell all, but not less
than all, of such shares to such third party at no less than the
price specified and on terms no more favorable than those set
forth in the Offeror's Notice. The requirements of this Section
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the proposed transferee would own not more than five percent of
the then outstanding shares of American Common Stock, (ii) of
American Common Stock by a person to which Wesbanco has assigned
its rights under the Option in accordance with Section 11(c)
hereof or (iii) pursuant to a registration under Section 7
hereof.
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11. Miscellaneous.
a. Expenses. Except as otherwise provided
herein, each of the parties hereto shall bear and
pay all costs and expenses incurred by it or on
its behalf in connection with the transactions
contemplated hereunder, including fees and
expenses of its own financial consultants,
investment bankers, accountants and counsel.
b. Entire Agreement. Except as otherwise
expressly provided herein, this Option Agreement
contains the entire agreement between the parties
with respect to the transactions contemplated
hereunder and supersedes all prior arrangements or
understandings with respect thereto, written or
oral. The terms and conditions of this Option
Agreement shall inure to the benefit of and be
binding upon the parties hereto and their
respective successors and assigns. Nothing in
this Option Agreement, expressed or implied, is
intended to confer upon any party, other than the
parties hereto, and their respective successors
and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Option
Agreement, except as expressly provided herein.
c. Assignment. Neither of the parties
hereto may assign any of its rights or obligations
under this Option Agreement or the Option created
hereunder to any other person, without the express
written consent of the other party.
d. Notices. All notices or other
communications which are required or permitted
hereunder shall be in writing and sufficient if
delivered in the manner and to the addresses
provided for in or pursuant to Section 18 of the
Merger Agreement.
e. Counterparts. This Option 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.
f. Specific Performance. The parties agree
that damages would be an inadequate remedy for a
breach of the provisions of this Option Agreement
by either party hereto and that this Option
Agreement may be enforced by either party hereto
through injunctive or other equitable relief.
g. Governing Law. This Option Agreement
shall be governed by and construed in accordance
with the laws of the State of West Virginia
applicable to agreements made and entirely to be
performed within such state and such federal laws
as may be applicable.
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IN WITNESS WHEREOF, each of the parties hereto has executed
this Stock Option Agreement as of the day and year first written
above.
WESBANCO, INC.
By /s/ Edward M. George
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Its President & Chief Executive Officer
AMERICAN BANCORPORATION
By /s/ Jeremy C. McCamic
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Its Chairman & Chief Executive Officer