UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934 (Amendment No. )
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[X] Preliminary Proxy Statement [_] CONFIDENTIAL, FOR USE OF THE
COMMISSION ONLY (AS PERMITTED BY
RULE 14A-6(E)(2))
[_] Definitive Proxy Statement
[_] Definitive Additional Materials
[_] Soliciting Material Pursuant to Section 240.14a-11(c) or Section 240.14a-12
Anson Bancorp, Inc.
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(Name of Registrant as Specified In Its Charter)
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Notes:
ANSON BANCORP, INC.
211 South Greene Street
Wadesboro, North Carolina 28170
(704) 694-2122
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
Merger Proposed - Your Vote Is Very Important
Date: November 30, 1999
Time: 10:00 a.m.
Place: Anson Savings Bank
Wadesboro, North Carolina 28170
MATTERS TO BE VOTED ON AT THE ANNUAL MEETING:
. Approval of the Agreement and Plan of Reorganization and Merger dated
August 3, 1999 between Uwharrie Capital Corp and Anson Bancorp, Inc.
. Election of seven directors for one-year terms
. Ratification of appointment of Faulkner & Thompson, P.A. as our independent
auditor for the fiscal year ending June 30, 2000
. Any other matters that may be properly brought before the Annual Meeting
The Boards of Directors of Anson Bancorp and Uwharrie Capital have agreed
on a merger in which Anson Bancorp will become a wholly owned subsidiary of
Uwharrie Capital and then will merge with and into Uwharrie Capital. Thereafter,
Anson Bancorp's wholly-owned savings bank subsidiary, Anson Savings Bank, will
be a wholly owned subsidiary of Uwharrie Capital.
In the merger each issued and outstanding share of Anson Bancorp common
stock will be exchanged for $17.30 in cash.
The stockholders of Anson Bancorp may be entitled to dissent from the
merger and obtain payment of the fair value of their shares under the provisions
of Article 13 of the North Carolina Business Corporation Act.
The merger with Uwharrie Capital cannot be completed unless our
stockholders approve it at the Annual Meeting. YOUR VOTE IS VERY IMPORTANT.
Whether or not you plan to attend the Annual Meeting, please take time to
vote by completing and mailing the enclosed proxy card. If you sign, date and
mail the proxy card without indicating how you want to vote, your proxy will be
counted as a vote in favor of the merger. If you fail to return your proxy
card, the effect will be a vote against the merger.
The other actions taken by our stockholders at the Annual Meeting - the
election of seven directors and the ratification of the appointment of Faulkner
& Thompson - will be effective until the closing of the merger, if it is
approved by our stockholders, or until the 2000 annual meeting if the merger is
not approved.
This Proxy Statement provides detailed information about the proposed
merger and the other matters under consideration. We encourage you to read it
carefully.
Eugene M. Ward
President and Chief Executive Officer
October 22, 1999 Anson Bancorp, Inc.
ANSON BANCORP, INC.
PROXY STATEMENT1999 ANNUAL MEETING OF STOCKHOLDERS
November 30, 1999 SUMMARY
This summary, in question and answer format, may not contain all the
information that is important to you. For a more complete understanding of the
proposed merger between Anson Bancorp, Inc. and Uwharrie Capital Corp, you
should read this entire document carefully, as well as the additional documents
referred to. "We", "our", "Anson" and the "Company" each refers to Anson
Bancorp, Inc. "Uwharrie Capital" refers to Uwharrie Capital Corp, "Anson
Savings" or the "Bank" each refers to Anson Savings Bank, Inc., the Company's
wholly-owned savings bank subsidiary.
QUESTIONS AND ANSWERS ABOUT THE MERGER
WHAT IS UWHARRIE CAPITAL?
Uwharrie Capital, a North Carolina corporation, is a bank holding company
registered with the Board of Governors of Federal Reserve System under the Bank
Holding Company Act of 1956. Uwharrie Capital owns all of the outstanding
shares of Bank of Stanly, a North Carolina banking corporation. Uwharrie
Capital, through Bank of Stanly and its other subsidiaries, Strategic Alliance
Corporation, BOS Agency, Inc., Corporate Data Services, Inc. and Strategic
Investment Advisors, offers a complete line of banking, investment, insurance
and data processing services through its offices in Albemarle, North Carolina.
WHAT ARE THE ANSON'S REASONS FOR THE MERGER?
The financial services industry has changed significantly in recent years.
Changes include (1) consolidation of the banking industry through mergers, (2)
deregulation of competition among banking, securities and insurance services
providers and (3) a trend towards banks and others offering a broad range of
different financial services and products to customers. In the future, many
expect the extensive use of technology to transform banking services delivery.
For these reasons, the Company's Board of Directors developed concerns about the
Company's small size and limited resources and its ability to meet the
challenges facing it. The Company's Board of Directors was concerned also about
its ability to meet its stockholders' expectations. Increasing stockholder
values in future years would require significant increases in profitability and
growth which would be difficult for the Company to achieve given its small size,
current market conditions and increasing consumer demand for sophisticated
financial services.
Anson's Board of Directors believes that a merger with Uwharrie Capital at this
time is in the best interests of its stockholders. Trident Financial
Corporation has advised the Board that Uwharrie Capital's offer of $17.30 per
share for the Company's outstanding common stock will result in a return of
value that is fair from a financial point of view for the Company's
stockholders. Additionally, the Board recognizes that the Bank's customers will
benefit from Uwharrie Capital's sophisticated financial services and its
commitment to the communities it serves.
WHAT DOES ANSON'S BOARD OF DIRECTORS RECOMMEND?
Anson's Board of Directors has unanimously approved the merger and recommends
that Anson stockholders vote FOR the proposal to approve the merger.
WHAT WILL I RECEIVE FOR MY ANSON COMMON STOCK?
Each share of your Anson common stock will be exchanged for $17.30 in cash.
SHOULD I SEND IN MY STOCK CERTIFICATES NOW?
No. After the merger is completed you will receive written instructions for
exchanging your Anson certificates for cash.
1
HOW WILL I BE TAXED ON THE MERGER?
We expect that for US federal income tax purposes, you will have gain or loss
measured by the difference between your cost or other basis in your shares and
the amount of cash received for the shares. You are urged to consult your own
tax advisors concerning specific tax consequences of the merger to you.
WHEN WILL THE MERGER BE COMPLETED?
We are working to complete the merger by the end of December 1999 or, at the
latest, by January 31, 2000.
WHAT CIRCUMSTANCES MIGHT PREVENT THE MERGER?
Either Uwharrie Capital or Anson may terminate the merger agreement and abandon
the merger if any of the following occurs:
. the merger is not approved by Anson's stockholders;
. the merger does not receive regulatory approval;
. the other party does not satisfy its obligations under the merger
agreement; or
. the merger is not completed by January 31, 2000
WHEN AND WHERE IS THE ANSON STOCKHOLDER MEETING?
The Annual Meeting of Anson's stockholders to vote on the merger and other
matters to be considered at the Annual Meeting will be held at 10:00 a.m. on
Tuesday, November 30, 1999 at the Bank's main office, 211 South Greene Street,
Wadesboro, North Carolina 28170.
WHO CAN VOTE ON THE MERGER? WHAT VOTE IS REQUIRED TO APPROVE THE MERGER?
Holders of Anson common stock at the close of business on October 15, 1999, can
vote at the Annual Meeting. The merger must be approved by the holders of a
majority of the outstanding shares of Anson common stock. As of October 15,
1999, there were 585,124 shares of the Company's common stock outstanding. Your
failure to vote will have the effect of a vote against approval of the merger.
WHAT SHOULD I DO NOW TO VOTE ON THE MERGER AND THE OTHER PROPOSALS TO BE
PRESENTED AT THE ANNUAL MEETING?
Just complete, date, sign and mail your signed proxy card in the enclosed return
envelope as soon as possible so your shares can be voted at the Annual Meeting.
IF MY SHARES ARE HELD IN "STREET NAME" BY MY BROKER, WILL MY BROKER VOTE MY
SHARES FOR ME?
Your broker cannot vote your shares with respect to the merger proposal without
your instructions. You should instruct your broker to vote your shares,
following the directions your broker provides. Shares that are not voted
because you do not instruct your broker effectively will be voted against the
merger.
CAN I CHANGE MY VOTE AFTER I MAIL MY PROXY CARD?
Yes, you can change your vote at any time before your proxy is voted at the
Annual Meeting. There are three ways you can change your vote. First, you can
send the Company a written statement that you would like to revoke your proxy.
Second, you can send the Company a new proxy card. You should send your
revocation or new proxy card
2
to the Company's Secretary at the address on the cover page. Third, you can
attend the annual meeting and vote in person. However, your attendance alone
will not revoke your proxy. If you instructed a broker to vote your shares, you
must follow your broker's directions for changing those instructions.
DO ANSON'S OFFICERS OR DIRECTORS HAVE ANY INTERESTS IN THE MERGER?
The Company's officers and directors may have interests in the merger that
differ from the interests of Anson's stockholders generally.
DO THE COMPANY'S STOCKHOLDERS HAVE APPRAISAL RIGHTS?
Under North Carolina law, the Company's stockholders may be entitled to dissent
from the merger and obtain payment of the fair value of their shares under
Article 13 of the North Carolina Business Corporation Act. A copy of Article 13
is attached to this Proxy Statement as Appendix C.
WHAT REGULATORY APPROVALS ARE REQUIRED?
Uwharrie Capital must receive the approval of the Board of Governors of the
Federal Reserve System for the merger and the Company must receive the approval
of the Administrator of the Savings Institutions Division, North Carolina
Department of Commerce for the merger.
Uwharrie Capital and Anson have filed all the required applications with these
regulatory authorities.
DID THE COMPANY USE A FINANCIAL ADVISOR?
In deciding to approve the merger, the Board of Directors considered the opinion
of its financial advisor, Trident Financial Corporation, as to the fairness of
Uwharrie Capital's offer from a financial point of view. In connection with
delivering its opinion, Trident performed a variety of analyses that are
described in the Proxy Statement. Trident's fairness opinion is attached as
Appendix B to this Proxy Statement. We encourage you to read Trident's analyses
and opinion.
CAN THE MERGER AGREEMENT BE AMENDED?
Uwharrie Capital and Anson may by mutual consent amend the merger agreement
before completion of the merger. However, once Anson's stockholders approve the
merger, any amendment changing the consideration to be paid in the merger must
be approved by the stockholders.
WHAT OPTION TO PURCHASE SHARES DID ANSON GIVE TO UWHARRIE?
In connection with the merger, Anson granted Uwharrie Capital the option to
purchase 111,173 shares of Anson's common stock at a price of $18.50 per share.
Uwharrie Capital may exercise the option upon the occurrence of certain events,
including:
. Anson entering into a merger, or similar kind of transaction, with any
person or entity other than Uwharrie Capital or an affiliate of Uwharrie
Capital;
. any person or entity acquiring, or having the right to acquire, beneficial
ownership of 20% or more of the outstanding Anson common stock; or
. a "change in control" of Anson occurring.
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SOLICITATION, VOTING AND REVOCABILITY OF PROXIES
GENERAL
These proxy materials are delivered in connection with the solicitation by
Anson's Board of Directors of proxies to be voted at the 1999 Annual Meeting of
Stockholders and at any adjournment or postponement. You are invited to attend
our Annual Meeting on November 30, 1999, at 10:00 a.m., Eastern Time, at the
main office of Anson Savings at 211 South Greene Street, Wadesboro, North
Carolina. This Proxy Statement and form of proxy are being mailed starting
October 22, 1999. The Company's telephone number is (704) 694-2122.
REVOCABILITY OF PROXY
A proxy may be revoked at any time before its exercise by (1) written
notice to the Secretary of the Company, (2) timely delivery of a valid later-
dated proxy or (3) voting by ballot at the Annual Meeting. However, if you are
a beneficial owner of shares of the Company's outstanding common stock that are
not registered in your own name, you will need appropriate documentation from
the holder of record of your shares to vote personally at the Annual Meeting.
SOLICITATION
The Company will pay the expenses of soliciting proxies. Proxies may be
solicited on our behalf by the Company's and the Bank's directors, officers and
regular employees in person or by telephone, facsimile transmission or by
telegram. We have requested brokerage houses and nominees to forward these
proxy materials to the beneficial owners of shares held of record and, upon
request, we will reimburse them for their reasonable out-of-pocket expenses.
VOTING AT THE ANNUAL MEETING
Regardless of how many shares of common stock you own, your vote is
important to us. Since many of our stockholders cannot attend the Annual
Meeting, it is necessary that a large number be represented by proxy.
Accordingly, the Board of Directors has designated proxies to represent those
stockholders who cannot be present in person.
You are requested to vote by mail by completing, signing, dating and
returning the enclosed proxy in the postage-paid envelope provided by the
Company. You may vote for, against, or withhold authority to vote on any matter
to come before the Annual Meeting. The designated proxies will vote your shares
in accordance with your instructions. If you sign and return a proxy card
without giving specific voting instructions, your shares will be voted as
follows:
. FOR approval of the Agreement and Plan of Reorganization and Merger
---
dated August 3, 1999, between Uwharrie Capital and the Company
(the "Merger Agreement")
. FOR the nominees for election to the Board of Directors named in this
---
Proxy Statement
. FOR ratification of the selection of Faulkner & Thompson, P.A. as the
---
Company's independent auditor for the fiscal year ending June 30, 2000
If instructions are given with respect to some but not all proposals, the
proxies will follow the instructions given and will vote FOR the proposals on
---
which no instructions are given. If matters not described in this Proxy
Statement are presented at the meeting, the proxies will use their own judgment
to determine how to vote your shares. We are not now aware of any other matters
to be presented except those described in the Proxy Statement. If the Annual
Meeting is adjourned, your common stock may be voted by the proxies on the new
meeting date as well, unless you have revoked your proxy instructions.
4
You are entitled to vote your common stock if our records showed that you
held your shares as of October 15, 1999 (the "Record Date"). At the close of
business on the Record Date, a total of 585,124 shares of common stock were
outstanding and entitled to vote. Each share of common stock has one vote on
each matter calling for a vote of stockholders at the Annual Meeting.
The presence, in person or by proxy, of the holders of a majority of the
votes entitled to be cast by the stockholders entitled to vote at the Annual
Meeting is necessary to constitute a quorum. The Annual Meeting may be
adjourned in order to permit the further solicitation of proxies if there is an
insufficient number of stockholders present to constitute a quorum. Abstentions
and broker "non-votes" are counted as present and entitled to vote for purposes
of determining a quorum. A broker "non-vote" occurs when a nominee holding
shares for a beneficial owner does not vote on a particular proposal because the
nominee does not have discretionary voting power for that particular item and
has not received instructions from the beneficial owner.
VOTE REQUIRED FOR APPROVAL
The affirmative vote of a majority of the shares of Anson common stock
entitled to vote is required to approve the Merger Agreement. Because we need a
majority of all outstanding Anson shares to vote FOR the Merger Agreement, if
you neither submit a proxy nor vote in person at the Annual Meeting, you will,
in effect, have voted against the Merger Agreement and Anson's acquisition by
Uwharrie Capital. In addition, if you submit a proxy card in which you abstain
from voting that also will be, in effect, a vote against the proposal.
A plurality of the votes cast is required for the election of directors.
As a result, those persons nominated for election as directors who receive the
largest number of votes will be elected directors. Abstentions and broker "non-
votes" are not counted for purposes of the election of directors. No stockholder
has the right to cumulatively vote his or her shares in the election of
directors.
The affirmative vote of a majority of the votes cast is required to approve
the appointment of Faulkner & Thompson, P.A. Abstentions and broker "non-votes"
are not counted for purposes of approving this matter.
AVAILABLE INFORMATION
Anson is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and files reports, proxy
statements and other information with the Securities and Exchange Commission
(the "SEC"). Reports, proxy statements and other information filed by the
Company can be inspected and copied at the public reference facilities
maintained by the SEC at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the SEC's Regional Offices located in Chicago
(Northwestern Atrium Center, Suite 1400, 500 West Madison Street, Chicago,
Illinois 60661-2511) and in New York (7 World Trade Center, 13th Floor, New
York, New York 10048). Copies of such material can be obtained by mail from the
Public Reference Section of the SEC, 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. In addition, the SEC maintains a World Wide Web
site that contains reports, proxy and information statements and other
information regarding registrants that file electronically with the SEC,
including the Company. The address is (http://www.sec.gov.).
As described below, this Proxy Statement incorporates by reference
documents relating to the Company which are not presented with the Proxy
Statement. Copies of those documents (other than exhibits which are not
specifically incorporated by reference into such documents) will be provided
without charge upon request directed to Eugene M. Ward, President, Anson
Bancorp, Inc., 211 South Greene Street, Wadesboro, North Carolina 28170,
telephone (704) 694-2122. In order to ensure timely delivery of the documents
before the Annual Meeting, any such request should be made by November 23, 1999.
Uwharrie Capital provided the information contained in the Proxy Statement
concerning Uwharrie Capital.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed by the Company with the SEC are
incorporated by reference into this Proxy Statement: (i) the Company's Annual
Report on Form 10-KSB for the fiscal year ended June 30, 1999, (ii) the
description of the Company's common stock contained in its Registration
Statement on Form S-1, Registration No. 333-47963 dated March 13, 1998, as
amended on May 8, 1998; as each is amended by Anson's subsequent reports filed
under the Exchange Act.
In addition, all other documents filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the date the Annual
Meeting has been finally adjourned shall be deemed to be incorporated by
reference herein from the date of filing of such documents. Any statements
contained in a document incorporated or deemed to be incorporated by reference
herein will be deemed to be modified or superseded for purposes of this Proxy
Statement to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part hereof.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
The Exchange Act requires that any person who acquires the beneficial
ownership of more than 5% of the common stock of the Company notify the SEC and
the Company. Following is certain information, as of the Record Date, regarding
all persons or "groups", as defined in the Exchange Act, who held of record or
who are known to the Company to own beneficially more than 5% of the Company's
common stock.
AMOUNT AND NATURE OF
Name and Address BENEFICIAL OWNERSHIP/1/ PERCENTAGE OF CLASS/2/
- --------------------------- ----------------------- ---------------------
Warren A. Mackey 57,900 9.9%
c/o CAI Advisors, Inc.
767 Fifth Avenue, 5th Floor
New York, New York 10153
1 Unless otherwise noted, all shares are owned directly or indirectly by the
named individual, by his spouse and minor children, or by other entities
controlled by the named individual.
2 Based upon a total of 585,124 shares of common stock outstanding at the
Record Date.
Set forth below is certain information, as of the Record Date, regarding those
shares of Common Stock owned beneficially by each of the members of the Board of
Directors (including nominees for re-election at the Annual Meeting), each of
the members of the board of directors of the Bank, certain executive officers of
the Company and the Bank, and the directors and executive officers of the
Company and the Bank as a group (all persons listed are directors of the Company
and the Bank).
7
AMOUNT AND
NATURE OF PERCENTAGE
BENEFICIAL OF
NAME AND ADDRESS Ownership/1, 2/ Class/3/
- --------------------------------------- --------------- ----------
Preston A. Burns, Chairman 5,500 0.94%
John J. Crawford, Director 10,000 1.71%
W. Kenneth Huntley, Director 10,000 1.71%
Emmett S. Patterson, Director 2,000 0.34%
John R. Potter, Director 2,500 0.43%
H. Patrick Taylor, Jr., Director 15,000 2.56%
Eugene M. Ward, Director, President and 10,000 1.71%
Chief Executive Officer
Other Executive Officers 7,065 1.21%
------ ------
All executive officers and directors as a
group (10 Persons) 62,065 10.61%
- -----------------------------------------
1 Voting and investment power is not shared unless otherwise indicated.
2 Unless otherwise noted, all shares are owned directly or indirectly by
the named individuals, their spouses and minor children, or other
entities controlled by the named individuals.
3 Based upon a total of 585,124 shares of Common Stock outstanding at the
Record Date.
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Exchange Act requires the Company's executive officers
and directors, and persons who own more than 10% of the Company's common stock,
to file reports of ownership and changes in ownership with the SEC. Executive
officers, directors and greater than 10% beneficial owners are required by SEC
regulations to furnish the Company with copies of all Section 16(a) forms they
file.
Based solely on a review of the copies of such forms furnished to the
Company and written representations from the Company's executive officers and
directors, the Company believes that during the fiscal year ended June 30, 1999,
all of its executive officers and directors and greater than 10% beneficial
owners complied with all applicable Section 16(a) filing requirements.
PROPOSAL 1
APPROVAL OF THE MERGER AGREEMENT AND THE MERGER
The following information describes material aspects of the Merger
Agreement and the proposed merger of Anson into Uwharrie Capital. The Merger
Agreement is attached as Appendix A and you are encouraged to read it in its
entirety.
DESCRIPTION OF PROPOSED MERGER
8
On August 3, 1999, the Company entered into the Merger Agreement with
Uwharrie Capital. The Merger Agreement provides that the Company will merge
with and into Anson Heritage, Inc., a North Carolina business corporation
created by Uwharrie Capital as a wholly-owned subsidiary to effect the
transaction (the "Merger"). Immediately after the Merger, Anson Heritage will
merge with and into Uwharrie Capital, resulting in the Bank becoming a wholly-
owned savings bank subsidiary of Uwharrie Capital.
At the effective time of the Merger, each outstanding share of the Company's
common stock (other than shares held by stockholders who properly exercise
"dissenters rights" in accordance with Article 13 of the North Carolina Business
Corporation Act (the "NCBCA") as discussed below) will be converted into the
right to receive $17.30 in cash.
BACKGROUND OF AND REASONS FOR THE PROPOSED TRANSACTION
The Company and Its Market Area. The Company is headquartered in
Wadesboro, North Carolina. Its sole subsidiary is the Bank, which is a
traditional savings institution, with one office in Wadesboro, North Carolina.
While the Bank's primary market area is Anson County, North Carolina, it also
makes loans to residents of Union, Stanly and Mecklenburg counties in North
Carolina from time to time.
Anson County is largely rural with a population of approximately 25,000,
located on the North Carolina/ South Carolina border. Its economy is
diversified among agriculture, manufacturing and services. Although the economy
is diversified and generally stable, population and household growth, and median
and per capita income levels for Anson County are generally lower than
comparable levels for North Carolina and the nation, while unemployment levels
are generally higher. Management regards the Anson County market area as a low
growth area in which there is significant competition among financial services
providers for market share. The Company believes that opportunities for future
earnings growth in the Bank's home market area are limited in light of these
factors.
The Bank is faced with significant competition from regional and local
banks in its own market area and from financial services firms in the larger
communities nearby.
The financial services industry has changed significantly in recent years.
Changes include consolidation of banking institutions by mergers, deregulation
of competition among banking, securities and insurance services providers, and a
trend toward banks and others offering a broad range of different financial
services and products to customers. In the future, many expect banking services
delivery to be transformed by extensive use of technology.
In view of the foregoing issues and conditions, the Company's Board of
Directors developed concerns about the Company's small size and limited
resources and its ability to meet the challenges facing it. See "INFORMATION
ABOUT THE COMPANY AND THE BANK -- Market and Dividend Information" for a
discussion of the limits on the Company's ability to pay dividends in the
future.
Retention of Financial Advisor and Solicitation of Proposals. In the
spring of 1999, the Company began discussions with Trident Financial Corporation
("Trident") regarding the Company's future prospects and in May 1999, the
Company retained Trident to serve as the Company's financial advisor. The
Company directed Trident to solicit an indication of interest from a bank
holding company that had previously expressed an interest in the Company.
During June 1999, Trident contacted the potential acquiror to inquire about its
interest in submitting a proposal to acquire the Company, and Trident provided
the company with the information requested for review in determining whether to
submit a proposal and the terms of any such proposal.
Between the time the potential acquiror was contacted and its subsequent bid,
Uwharrie Capital contacted Trident and informed them of its interest in
submitting a bid for Anson. Trident then provided Uwharrie Capital with the
same information it had provided the potential acquiror.
In response to Trident's solicitation, the potential acquiror presented a
written proposal to the Company which provided for an exchange of $17.00 in cash
for each of the Company's outstanding shares. Uwharrie Capital offered $17.50
in cash per outstanding share of Anson common stock. Among other terms of the
transaction proposed by Uwharrie Capital relating to the Company's management
and employees, the proposal included Uwharrie Capital's
9
assumption of the existing employment agreement with Eugene M. Ward, Anson's
President, retention of the Company's Board of Directors for one year, the
assumption of the Bank's Severance Plan and a "pay-to-stay" bonus for all
employees other than Mr. Ward and W. LeGrand Bennett. Uwharrie Capital's
proposal was contingent upon satisfactory completion of a review of the
Company's and the Bank's assets, corporate records, financial statements and
other matters, the negotiation and execution of a definitive agreement and
receipt of stockholder approval and regulatory approvals. During the review of
Anson's records, Anson was advised that terminating Anson's existing pension
plan, as required by Uwharrie Capital, would require the outlay of approximately
$200,000. In light of this, Uwharrie Capital revised its proposal to an exchange
of $17.30 in cash for each outstanding share of Anson common stock.
Decision to Negotiate and Enter Definitive Agreement with Uwharrie Capital.
Trident made a detailed examination of the Company and its prospects and
presented a report to the Board of Directors in July 1999. Trident advised the
Board of Directors that its fundamental alternatives were to continue to operate
as an independent company, or to combine with another company. Also, Trident
assessed the value of the Company's shares in a change of control transaction
and advised the Board of Directors of the valuation range. Based on the results
of its study, Trident advised the Board of Directors that, if the Company
continued to operate under its existing business plan, stockholder values in
future years would not achieve a rate of return applicable for investments in
financial institutions. The Board of Directors then decided to pursue
negotiations with Uwharrie Capital.
With the assistance of its advisors, Anson negotiated the terms of a
definitive agreement with Uwharrie Capital. The Board of Directors met with
Trident and legal counsel to consider Uwharrie Capital's final proposal on
August 3, 1999.
At the August 3 meeting, Trident presented to the Board of Directors a
detailed financial analysis of Uwharrie Capital's proposal. Among other factors,
Trident advised the Board that the consideration proposed by Uwharrie Capital
was fair from a financial point of view for the Company's stockholders as
determined by Trident's analyses. With Trident's assistance and assistance from
legal advisors, the Board of Directors evaluated the financial and market
considerations relevant to a decision to recommend to its stockholders approval
of the acquisition of Anson by Uwharrie Capital. The terms of the Merger
Agreement, including the purchase price, are the result of arm's-length
negotiations. At the August 3 meeting, the Board concluded that entering into
the Merger Agreement is in the best interests of Anson and its stockholders. The
Board's conclusion was based on the directors' consideration of the following
factors (without assigning any relative or specific values to any factor):
(i) the financial terms of the proposed agreement;
(ii) a comparison of the terms of the proposed agreement with comparable
transactions in North Carolina and elsewhere;
(iii) information concerning the business, financial condition, results of
operations and prospects of Anson and Uwharrie Capital;
(iv) competitive factors and trends toward consolidation in the banking
industry;
(v) the review by Anson's Board with its legal and financial advisors of
the provisions of the proposed agreement;
(vi) Trident's opinion rendered to Anson's Board that the consideration to
be received under the agreement is fair from a financial point of view
to Anson's stockholders;
(vii) alternatives to being acquired by Uwharrie Capital, including
operating as an independent company, in light of the economic
conditions and prospects of Anson and North and South Carolina's
banking markets and the competitive environment and the economy
generally; and
(viii) the value received by holders of Anson common stock in relation to the
historical trading prices, book value and earnings per share of Anson
common stock.
10
Anson's Board of Directors believes that by becoming a part of a larger
organization with greater resources Anson will be able to serve its customers
better by providing a broader range of financial services and by joining with an
institution that is committed to the region.
The Board of Directors also considered provisions made for benefits to
employees, management and members of the Board. The Board concluded that those
terms are fair and reasonable.
While each member of the Board of Anson individually considered the
foregoing and other factors, the Board did not collectively assign any specific
or relative weights to the factors considered and did not make any determination
with respect to any individual factor. The Board collectively made its
determination with respect to the Merger Agreement based on the unanimous
conclusion reached by its members, in light of the factors that each of them
considered appropriate, that the Merger Agreement is in the best interests of
Anson's stockholders.
OPINION OF TRIDENT FINANCIAL CORPORATION
In May 1999, Anson retained Trident as its financial advisor and engaged
Trident to perform a valuation analysis of Anson in an acquisition context and
to advise the Board of Directors with regard to strategic alternatives. On July
2, 1999, Trident presented its valuation report (the "Valuation Report") to the
Board of Directors.
On August 3, 1999, Trident met with Anson's Board of Directors to review
the proposed terms of the Merger Agreement. At that time, Trident presented a
report (the "Fairness Opinion Report") to Anson's Board of Directors summarizing
the financial terms of the Merger and providing updated market information with
respect to thrift mergers and acquisitions. In addition, Trident rendered its
written Opinion to Anson's Board of Directors to the effect that, as of that
date, the consideration to be received by Anson's stockholders pursuant to the
Merger Agreement was fair from a financial point of view (the "Opinion"). The
financial fairness standard employed by Trident in rendering its Opinion was
whether such consideration was within the range of the economic values of
consideration that companies having the characteristics of Anson and Uwharrie
Capital might negotiate in comparable circumstances, not whether the
consideration proposed in the Merger Agreement is at or approaching the higher
end of such range.
Trident confirmed and delivered its Opinion to Anson's Board of Directors
as of the date of this Proxy Statement that the consideration to be received by
the stockholders of Anson in the Merger is fair from a financial point of view,
as of such date. A copy of the Opinion, which sets forth certain assumptions
made, matters considered and limitations on the reviews undertaken, is attached
to this Proxy Statement as Appendix B. Trident has consented to the inclusion
of such Opinion and summaries of the Valuation Report and Fairness Opinion
Report in the Proxy Statement that will be circulated to Anson's stockholders.
TRIDENT'S OPINION IS DIRECTED TO THE BOARD OF DIRECTORS OF ANSON AND IS
DIRECTED ONLY TO THE FAIRNESS, FROM A FINANCIAL POINT OF VIEW, OF THE
CONSIDERATION TO BE RECEIVED BY ANSON'S STOCKHOLDERS BASED ON CONDITIONS AS
THEY EXISTED AND COULD BE EVALUATED AS OF THE DATE OF THE OPINION.
TRIDENT'S OPINION DOES NOT CONSTITUTE A RECOMMENDATION TO ANY ANSON
STOCKHOLDER AS TO HOW SUCH STOCKHOLDER SHOULD VOTE AT THE SPECIAL MEETING,
NOR DOES TRIDENT'S OPINION ADDRESS THE UNDERLYING BUSINESS DECISION TO
EFFECT THE MERGER. THIS SUMMARY OF TRIDENT'S OPINION IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO THE FULL TEXT OF SUCH OPINION, WHICH IS ATTACHED
TO THIS PROXY STATEMENT AS APPENDIX B. STOCKHOLDERS ARE URGED TO READ
TRIDENT'S OPINION IN ITS ENTIRETY FOR A DESCRIPTION OF THE ASSUMPTIONS MADE
AND MATTERS CONSIDERED AND THE LIMITS ON THE REVIEW UNDERTAKEN IN RENDERING
SUCH OPINION.
In its review and analysis and in arriving at its Opinion, Trident assumed
and relied upon the accuracy and completeness of all of the financial and other
information provided to it by Anson, or that was publicly available, the
accuracy of the representations and warranties of the officers and the employees
of Anson with whom Trident held discussions, and the accuracy of the
representations and warranties of Anson in the Merger Agreement, and did not
attempt independently to verify any such information. Trident further assumed
that there are no conditions in the
11
regulatory approvals of the Merger Agreement that will have a material adverse
effect upon the contemplated economic benefits of the Merger. The financial
information provided to Trident by Anson was of the type normally produced by
the management of Anson and reviewed by Anson's Board of Directors at its
regular meetings and the Board and management of Anson have represented to
Trident that they have no reason to believe that Trident's reliance thereon was
unreasonable. Anson's Board, however, did not specifically review the
information, assumptions and other information provided by management to Trident
for accuracy and completeness. Trident did not conduct a physical inspection of
the properties or facilities of Anson, nor did they make or obtain any
independent evaluations or appraisals of any of such properties or facilities.
In conducting its analyses and arriving at its Opinion as expressed herein,
Trident considered such financial and other factors as it deemed appropriate
under the circumstances including, among others, the following:
(i) The Merger Agreement;
(ii) This Proxy Statement;
(iii) Certain publicly available information concerning Anson, including the
audited financial statements of Anson for each of the years in the
three-year period ended June 30, 1999;
(iv) The historical and current financial condition and results of
operations of Anson, including interest income, interest expense, net
interest income, net interest margin, interest sensitivity, non-
interest expense, earnings, dividends, book value, return on assets,
return on equity, capitalization, the amount and type of non-
performing assets and the reserve for loan losses;
(v) The business prospects of Anson;
(vi) The economy in Anson's market area;
(vii) The historical and current market for Anson's common stock and for the
equity securities of certain other companies that Trident believed to
be comparable to Anson;
(viii) The nature and terms of certain other acquisition transactions that
Trident believed to be relevant; and
(ix) Certain publicly available information with respect to other companies
that Trident believed to be comparable to Anson and the trading
markets for such other companies' securities.
Trident also took into account its assessment of general economic, market,
financial and regulatory conditions and trends, as well as its knowledge of the
financial institutions industry, its experience in connection with similar
transactions, and its knowledge of securities valuation generally. In addition,
Trident met with certain officers and employees of Anson to discuss the
foregoing, as well as other matters, which it believed relevant to its inquiry.
No limitations were imposed by either Anson or its Board or management with
respect to the investigation made or procedures followed by Trident. Trident's
Opinion necessarily is based upon conditions in existence and subject to
evaluation on the respective dates of its Opinion. Trident's Opinion is, in any
event, limited to the fairness, from a financial point of view, of the
consideration to be received by Anson's stockholders in the Merger and does not
address Anson's underlying business decision to effect the Merger.
The summaries set forth below reflect all the material analysis, factors
and assumptions considered by Trident and the material valuation methodologies
used by Trident in arriving at its Opinion as to fairness described above. The
preparation of a fairness opinion is a complex process and is not necessarily
susceptible to partial or summary description. Trident believes that its
analyses and the summary set forth below must be considered as a whole, and that
selecting portions of its analyses without considering all of the analyses, or
reviewing the summary without considering all factors and analyses, would create
an incomplete view of the processes underlying the analyses set forth in
Trident's reports and its Opinion. Therefore, the ranges of valuations
resulting from any single analysis described below should not be taken to be
Trident's view of the actual value of Anson or the combined company. In
performing its analyses, Trident made numerous assumptions with respect to
industry performance, general business and economic conditions and other
matters, many of which are beyond the control of Anson. The results of the
specific analyses performed by Trident may differ from Anson's actual values or
actual future results as a result of changing economic conditions, changes in
company strategy and policies, as well as a number of other factors. Such
individual analyses were prepared to provide valuation guidance solely as part
of Trident's overall valuation analysis and the determination of the fairness of
the consideration to be paid to Anson's stockholders. The analyses do not
purport to be appraisals or to reflect the prices at which a company might
actually be sold or the prices at which any securities may trade at the present
time or at any time in the future. In addition, as described above, Trident's
Opinion and presentations to Anson's Board of Directors were among the many
factors taken into consideration by Anson's Board of Directors in making its
determination to approve the Merger Agreement.
12
Trident met or engaged in discussions with the Board of Directors of Anson
(or representatives thereof) at various times between May 1999 and July 1999 to
present analyses contained in a series of reports that serve as the basis for
Trident's Opinion. Two key reports presented by Trident were the Valuation
Report dated July 2, 1999 and the Fairness Opinion Report dated August 3, 1999.
The following is a brief summary of the Valuation Report presented by Trident to
the Board of Directors of Anson on July 2, 1999:
Financial Analysis of Anson. Trident examined Anson's financial
performance for the period June 30, 1997 through March 31, 1999 by analyzing the
composition of its balance sheet, adjusting and normalizing its earnings, and
calculating a variety of operating and financial ratios for Anson. Trident
compared Anson's deposit market share with other financial institutions
operating in the same market. Trident also studied the trading market for
Anson's common stock and reviewed the performance of the Standard and Poor's 500
Index as well as indices of actively traded banks and thrifts during the last
twelve months.
State of the Market. Trident reviewed the current and historical trading
market for thrift and bank equities, and current and historical trends in the
acquisition markets for banks and thrifts. Trident focused on the acquisition
market for thrifts with particular attention to the segments of the market which
it believed to be the most relevant to Anson, such as thrifts of similar size
and profitability, thrifts with similar capital structures and asset quality,
and thrifts located in the same geographic region.
Control Valuation of Anson Common Stock. Trident estimated the fair
market value of Anson's common stock in a merger. In valuing Anson's common
stock, Trident utilized the market approach.
In the market approach, Trident analyzed certain market pricing ratios
(such as price to book value, price to tangible book value, price to assets, and
core deposit premium) resulting from fourteen completed thrift merger
transactions (the "Guideline Transactions") since January 1, 1995, involving
target thrifts with equity/asset levels exceeding 25%. Trident then compared a
number of financial ratios for Anson to those of the target thrift institutions
and reviewed the pricing ratios of the Guideline Transactions. The price to book
value and tangible book value for the fourteen companies ranged from a low of
104% to a high of 140% with a median of 115%. The Price to assets for the
Guideline Transactions ranged from 27.8% to 55.7% with a median of 34.0%. The
core deposit premium for the Guideline Transactions ranged from 3.6% to 28.5%
with a median of 11.4%. Price to earnings was not meaningful for our valuation
due to the low profitability of Anson.
Valuation Conclusions. Trident reviewed the results from the market
approach, and after consideration of all relevant facts, reconciled the
acquisition value of Anson to be in a range of $16.50 to $18.50 per share
resulting in a price to book value and tangible book value range of 101% to
113%, a price to asset range of 38.7% to 43.4%, and a core deposit premium range
of .7% to 9.0%.
Strategic Alternatives. Trident presented a list of the pros and cons of
various strategic alternatives open to Anson: (i) remain independent, and (ii)
merge with a larger financial institution. Trident projected future trading
prices and acquisition values for Anson Common Stock based on an assumed growth
rate and profitability level for Anson. Trident also compared the present
values and rates of return for remaining independent with the expected present
value and rate of return that might be realized in a merger transaction.
Prospective Acquirors. Trident presented Anson with a list of other
financial institutions with operations in North Carolina and South Carolina
that it believed to be prospective acquirors. These prospective acquirors were
categorized based on Trident's perceived level of interest from the prospective
acquiror and "fit" with Anson.
The following is a summary of the Fairness Opinion Report presented to the
Board of Directors of Anson on August 3, 1999:
Process. Trident briefly reviewed the process that led to the Merger
Agreement. Trident presented a list of the financial institutions that were
contacted regarding a possible business combination with Anson. Trident then
discussed the proposal submitted by one other potential acquiror and Uwharrie
Capital. Trident then discussed the proposals submitted by the interested
parties and reviewed the respective benefits and risks of each.
Summary of Proposed Transaction. Trident presented a summary of the
financial terms of the Merger and reviewed a time table estimating the time and
events necessary to close the deal.
13
ANNOUNCED DEAL PRICING*
PRICE/ PRICE/
AT 8/3/99 PRICE/ BOOK TANG. BOOK PRICE/ PRICE/
SHARE VALUE VALUE EARNINGS ASSETS
$ % % LTM %
------ ------ ---------- -------- ------
Anson Bancshares $17.30 105.8% 105.8% 62.1 40.6%
* Based on Financial Data as of 3/31/99
Trident reported that during its investigation, Trident did not discover
any conditions that would prevent it from rendering its fairness opinion to
Anson's Board of Directors. As discussed above, Trident relied, without
independent verification, upon the accuracy and completeness of all of the
financial and other information provided by Anson.
Trident, as part of its investment banking business, is continually engaged
in the valuation of businesses and their securities in connection with mergers
and acquisitions, negotiated underwriting, and valuations for corporate and
other purposes. Trident has extensive experience with the valuation of
financial institutions. Trident Securities Inc., an affiliate of Trident,
served as the Anson's sales agent in its mutual-to-stock conversion in 1998, and
received total fees and commissions of $131,140 for that transaction. In
addition, in the ordinary course of business, Trident Securities may trade the
securities of Anson for its own account and for the accounts of its customers
and, accordingly, may at any time hold a long or short position in such
securities. The Board of Directors selected Trident as its financial advisor
because of its previous experience with Trident, because Trident is a nationally
recognized investment banking firm specializing in financial institutions, and
because of its substantial experience in transactions similar to the Merger.
Trident is not affiliated with the Anson or Uwharrie Capital.
For its services as financial advisor, Anson paid Trident $5,000 to perform
a valuation of Anson and to advise the Board of Directors with regard to
strategic alternatives. Anson paid Trident a fee of $20,000 upon execution of
the Merger Agreement. An additional fee equal to 2.0% of the aggregate merger
consideration, less $25,000, will be payable to Trident upon consummation of the
Merger (a balance due of approximately $177,453 based on the total merger
consideration and the aforementioned fee structure). Anson has also agreed to
reimburse Trident for its reasonable out-of-pocket expenses and to indemnify
Trident against certain liabilities, including certain liabilities under federal
securities laws.
EXCHANGE OF THE COMMON STOCK FOR CASH
Stockholders of the Company who are the holders of record of shares of the
common stock as of the Effective Time, which is the date and time designated in
the Articles of Merger for the Merger, and filed with the North Carolina
Secretary of State, receive $17.30 in cash for each share of the common stock
held by such stockholders at the Effective Time.
Based on the 585,124 shares of the common stock outstanding on the Record
Date, the total price of the Merger will be approximately $10,122,645
representing $17.30 exchanged for each common share. Uwharrie Capital will
provide the consideration for the common stock from cash reserves on hand and
other available sources of funds.
PROMPTLY AFTER THE CONSUMMATION OF THE MERGER, UWHARRIE CAPITAL OR THE
COMPANY WILL NOTIFY THE COMPANY'S STOCKHOLDERS OF THE PROCEDURES FOR EXCHANGING
THE COMMON STOCK FOR CASH. THE COMPANY'S STOCKHOLDERS SHOULD NOT SEND IN THEIR
SHARE CERTIFICATES UNTIL THEY RECEIVE TRANSMITTAL FORMS FROM UWHARRIE CAPITAL OR
THE COMPANY. THE TRANSMITTAL FORMS WILL LIST PERSONS TO CONTACT FOR ASSISTANCE
WITH THE EXCHANGE.
CONDITIONS TO CONSUMMATION OF THE MERGER
The respective obligations of Uwharrie Capital and Anson to consummate the
Merger are subject to the satisfaction or waiver of certain conditions,
including, without limitation:
(i) the approval of the Merger by the Boards of Directors of Uwharrie
Capital and Anson, and by the stockholders of Anson;
14
(ii) the receipt of all necessary regulatory approvals and expiration of
all notice periods and waiting periods required after the granting of any
such approval, without any condition or requirement contained in any such
approval which, in the reasonable opinion of Uwharrie Capital, is
materially disadvantageous or burdensome or would so adversely impact the
business or economic benefits of the Merger Agreement to Uwharrie Capital
as to make consummation of the Merger inadvisable;
(iii) the absence of any order, decree or injunction which enjoins or
prohibits consummation of the transactions contemplated by the Merger
Agreement;
(iv) the representations of Uwharrie Capital and the Company contained in
the Merger Agreement must be true and correct in all material respects as
of the Effective Time, and the various agreements and covenants of Uwharrie
Capital and the Company required thereunder must have been duly performed
and complied with prior to the Effective Time;
(v) the receipt of the written opinion of counsel to the other party as to
certain matters addressed in the Merger Agreement and certain certificates
from the officers of Uwharrie Capital and Anson;
(vi) the receipt from the Company's pension plan administrator of a
projection of the total amount necessary to fund the Company's pension plan
upon final termination of the plan, which amount shall not exceed $200,000;
(vii) the absence of a material adverse change in the financial condition,
operations or business of the Company;
(viii) the compliance by Uwharrie Capital and Anson in all material
respects with all federal and state laws and regulations applicable to the
Merger;
(ix) Anson's legal fees associated with the Merger will not exceed $40,000;
(x) the receipt from Trident, dated within fives days preceding the mailing
of the Proxy Statement and within five days preceding the Effective Time,
of an opinion that the transaction is fair to the Company's stockholders
from a financial point of view.
Either the Company or Uwharrie Capital may waive in writing certain of the
conditions imposed with respect to its or their respective obligations to
consummate the Merger, except for the requirements that the Merger be approved
by the Company's stockholders, that all required regulatory approvals be
received and that all notice periods and waiting periods be expired.
TERMINATION OF THE MERGER AGREEMENT
The Merger Agreement may be terminated at any time prior to the Effective
Time by the mutual consent of the parties. Either party, upon written notice to
the other party, may elect to terminate the Merger Agreement if:
(i) the conditions precedent to the obligations of such party to consummate
the transactions contemplated by the Agreement have not been satisfied or
waived, or if the Merger is not effective, by January 31, 2000, unless such
date is mutually extended;
(ii) if the other party has, in any material respect, violated or failed to
fully perform any of its obligations, covenants or agreements contained in
the Merger Agreement;
(iii) if the party determines at any time that a representation or warranty
given by the other party is false or misleading in any material respect, or
that an event or development has occurred or a condition or circumstance
exists which has caused or, with the lapse of time or otherwise, may or
could cause any representation or warranty to become false or misleading in
any material respect; or
(iv) if the Company's stockholders do not approve the Merger Agreement.
15
Uwharrie Capital also may terminate the Merger Agreement if (a) it believes
the amount of environmental-related expenses or liability relating to the
Company's property which the Company or Uwharrie Capital could incur or for
which either could become liable for remediation, corrective action or monetary
damages equals or exceeds an aggregate of $250,000 or (b) the expense related to
terminating the Company's pension plan exceeds $200,000.
AMENDMENT OF THE MERGER AGREEMENT
The Merger Agreement may be amended or supplemented in writing by mutual
agreement of Uwharrie Capital and the Company, provided that such amendment or
supplement must be approved by their respective Boards of Directors and provided
further that no amendment or supplement executed after approval of the Merger
Agreement by the Company's stockholders may change the consideration into which
each share of the common stock will be converted without the further approval of
the Company's stockholders.
CONDUCT OF THE COMPANY'S BUSINESS PRIOR TO THE EFFECTIVE TIME
Pursuant to the Merger Agreement, the Company has agreed, unless it has
obtained the prior consent of Uwharrie Capital, and except as otherwise
contemplated by the Merger Agreement, to operate its business and to engage in
transactions only in the usual, regular, and ordinary course, to preserve intact
its business organization, to keep available the services of its present
officers and employees, and to preserve its present relationships with
depositors, suppliers, customers, and others having business dealings with the
Company and the Bank.
In addition, the Company has agreed that, prior to the earlier of the
Effective Time or the termination of the Merger Agreement, the Company may not,
except with the prior written consent of Uwharrie Capital or except as expressly
contemplated by the Merger Agreement, do, or agree or commit to do, any of the
following:
(i) amend its charter or bylaws;
(ii) (a) make any change in its authorized capital stock, or create any
other or additional authorized capital stock or other securities, or
(b) except as provided in the Merger Agreement, issue, sell,
purchase, redeem, retire, reclassify, combine or split any shares of
its capital stock or other securities;
(iii) grant or issue any options, warrants, calls, puts or other rights of
any kind relating to its capital stock or any other securities,
except for the option granted to Uwharrie Capital;
(iv) declare or pay any dividend or other distribution in respect of its
capital stock;
(v) (a) enter into any oral or written agreement for the employment or
compensation of any director, officer, employee or consultant which
is not immediately terminable without cost or other liability on no
more than 30 days' notice, except for the employment agreement with
W. LeGrand Bennett, Jr., (b) adopt any new or additional profit-
sharing, bonus, incentive, change in control or "golden parachute,"
stock option, stock purchase, pension, similar contract, agreement,
commitment, understanding, plan or arrangement for the benefit of
any current or former director, officer, employee or consultant, or
(c) enter into any contract with any labor or trade union or
association or any collective bargaining group;
(vi) increase the rate of compensation of or pay any bonus to, or provide
any other employee benefit or incentive to any director, officer or
employee, except as expressly permitted by the Merger Agreement or
in a manner and amount consistent with past practice;
(vii) make any change in its accounting methods, practices or procedures
or in depreciation or amortization policies, schedules or rates
except as required by GAAP or governmental regulations;
(viii) acquire or merge with, or acquire any branch or any significant part
of the assets of, another person or entity or open any new branch
office;
(ix) except as may be required by governmental or regulatory agencies,
applicable law, regulation or the Agreement, (a) change in any
material respect the nature of its business or the manner in which
16
it conducts its business, (b) discontinue any material portion or
line of its business, or (c) change in any material respect its
lending, investment, asset-liability management or other material
banking or business policies;
(x) (a) encourage, solicit or attempt to initiate discussions with any
other person or entity relating to a merger or other acquisition of
the Company or the purchase or acquisition of any common stock of
Anson or the Bank or all or any significant part of the Company's or
the Bank's assets; or provide assistance to any person in connection
with any such offer; (b) except to the extent required by law,
disclose to any person or entity any information not customarily
disclosed to the public, or afford to any other person or entity
access to its properties, facilities, books or records; (c) sell or
transfer any significant part of Anson's or the Bank's assets to any
other person or entity; or (d) enter into any agreement or letter of
intent relating to such transactions;
(xi) (a) sell or lease (as lessor) any real estate, equipment, or other
asset having a value on its books or a fair market value, whichever
is greater, of more than $5,000 for any individual item or asset, or
more than $25,000 in the aggregate for all assets, (b) purchase or
lease (as lessee) any real estate, equipment or other assets having
a purchase price in excess of $5,000 for any individual item or more
than $25,000 in the aggregate for all items, (c) enter into a
purchase commitment for supplies or services which calls for prices
of goods or fees for services materially higher than current market
prices or which obligate the Company for a period longer than twelve
months, (d) sell, purchase or repurchase any loan or other
receivable or participation in any loan or other receivable except
in the ordinary course of business, or (e) sell any asset of the
Company or the Bank including any trademark or trade name, or assign
its right or otherwise give permission or consent to do business
under the Company's or the Bank's corporate name or any name similar
or release or waive any license or right granted by any other person
to use any trademark or trade name or intellectual property right.
(xii) except in the ordinary course of business, (a) enter into or become
bound by any promissory note, loan agreement or other agreement to
borrow money, (b) become responsible or liable for any obligation of
any other person or entity, or (c) incur any other liability or
obligation;
(xiii) mortgage, pledge or subject any assets to any lien or any other
encumbrance;
(xiv) waive, release or compromise any material rights except in the
ordinary course of business and in good faith for fair value, nor
waive, release or compromise any rights against or with respect to
any officer, director or stockholder or member of the family of an
officer, director or stockholder;
(xv) enter into agreements unless otherwise permitted in the Merger
Agreement (a) with respect to any charitable contributions, (b) with
any governmental or regulatory authority, (c) pursuant to which
Anson or the Bank would become liable for the debt, liability or
obligation of any other person or entity, (d) which is entered into
other than in the ordinary course of its business, or (e) which, in
the case of any one agreement, and whether or not in the ordinary
course of its business, would obligate them to make expenditures
over any period of time of more than $10,000 (other than agreements
entered into in the ordinary course of their lending operations);
REGULATORY CONSIDERATIONS
The Merger is subject to certain regulatory approvals, as set forth below.
To the extent that the following information describes statutes and regulations,
it is qualified in its entirety by reference to the particular statutes and
regulations promulgated under such statutes.
Uwharrie Capital's acquisition of the Company, which will be effected
through the Merger, is subject to approval by the Board of Governors of the
Federal Reserve System ("Federal Reserve") under the Bank Holding Company Act of
1956, as amended (the "BHCA") which permits a bank holding company, such as
Uwharrie Capital to acquire direct or indirect ownership or control of more than
5% of the voting shares of any bank or any bank holding company, such as the
Company, if the Federal Reserve has approved the transaction based upon its
review of the financial and managerial resources and future prospects of the
existing and proposed institutions and the convenience and needs of the
community to be served. This consideration includes an evaluation by the
Federal
17
Reserve as to whether the Merger would result in a monopoly or otherwise would
substantially lessen competition or impair the financial and managerial
resources and future prospects of Uwharrie Capital or the Company. In addition,
the Federal Reserve must take into account the records of Uwharrie Capital and
the Company in meeting the credit needs of the entire community served by such
institutions, including low- and moderate-income neighborhoods.
In order to effect the Merger, Uwharrie Capital will form a business
corporation with the name "Anson Heritage, Inc." as the wholly owned subsidiary
of Uwharrie Capital; the Company will merge into Anson Heritage, Inc., making
the Company a wholly-owned subsidiary of Uwharrie Capital. Immediately
thereafter Anson Heritage will merge with and into Uwharrie Capital. To
accomplish the Merger, Uwharrie Capital has applied to the Federal Reserve for
approval to acquire the Company and to merge the Company with and into Uwharrie
Capital. The Company has applied to the Administrator of the Savings
Institutions Division, North Carolina Department of Commerce (the
"Administrator") for approval of its merger with Anson Heritage, Inc.
The Merger cannot be consummated until all regulatory approvals and all
required waiting periods have run.
Uwharrie Capital and the Company are not aware of any other governmental
approvals or actions that are required for consummation of the Merger except as
described above. Should any such approval or action be required, it is
presently contemplated that such approval or action would be sought or taken.
There can be no assurance that any such approval or action, if needed, could be
obtained, would not delay consummation of the Merger or would not be conditioned
in a manner that would cause Uwharrie Capital to abandon the Merger.
18
CLOSING AND EFFECTIVE TIME
The Merger will not be consummated unless and until the Merger Agreement
and the transactions contemplated thereby are approved by the requisite vote of
the stockholders of the Company, the required regulatory approvals are received,
and the other conditions to the Merger are satisfied (or waived to the extent
permitted by applicable law). The Merger Agreement provides that the closing of
the Merger will occur on a date agreed upon by the parties as soon as
practicable after the expiration of any and all required approvals of the Merger
by governmental or regulatory authorities. The Merger will become effective on
the date and time specified in the Articles of Merger, or such other documents
as are necessary to consummate the Merger, filed with the North Carolina
Secretary of State. The merger of Anson Heritage into Uwharrie Capital shall be
effective as soon as practicable following the Effective Time.
TAX CONSEQUENCES OF THE MERGER
Each stockholder of the Company who, pursuant to the Merger Agreement,
receives cash in exchange for shares of the common stock generally will, upon
the payment of such cash in exchange for the surrender of the certificate or
certificates representing such stockholder's shares, realize gain or loss for
federal income tax purposes measured by the difference between such
stockholder's cost or other basis in such shares and the amount of cash received
therefor, and the amount of such gain or loss so realized must be recognized by
such stockholder for federal income tax purposes. Such gain or loss will be
capital gain or loss if the shares held by such stockholder constitute capital
assets in the stockholder's hands, and will be long-term capital gain or loss if
such stockholder's holding period for such shares is more than one year. This
summary is not a complete description of all the tax consequences of the Merger,
and in particular, may not address federal income tax considerations that may
affect the holders of the common stock entitled to special treatment under the
Internal Revenue Code of 1986, as amended (the "Code"), such as insurance
companies, dealers in securities, tax exempt organizations, foreign persons or
corporations, or compensation related acquisitions.
STOCKHOLDERS ARE URGED AND ADVISED TO CONSULT THEIR OWN TAX COUNSELORS AND
ADVISORS WITH REGARD TO THE SPECIFIC TAX CONSEQUENCES OF THE MERGER TO THEM,
INCLUDING TAX RETURN REPORTING REQUIREMENTS, THE EFFECT OF FEDERAL, STATE,
LOCAL, AND OTHER APPLICABLE TAX LAWS, AND THE EFFECT OF ANY PROPOSED CHANGES IN
THE TAX LAWS.
INTERESTS OF CERTAIN PERSONS IN THE MERGER AND EFFECT OF THE MERGER ON EMPLOYEES
AND BENEFIT PLANS
Stock Owned by Officers and Directors. Information as to the stockholdings
of directors and executive officers of the Company is included in the section of
this Proxy Statement entitled "SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS."
Employment Agreements. At the Effective Time, Uwharrie Capital will assume
the Company's and the Bank's obligations under the existing employment agreement
with Eugene M. Ward, President of the Company and the Bank. Uwharrie Capital
has agreed that Mr. Ward may fulfill the first year of his existing employment
agreement after the Effective Time. The last two years under the existing
employment agreement shall be effected by, in Mr. Ward's discretion, either one
lump sum payment or two equal payments and he will no longer have any
responsibilities or obligations to the Bank and Uwharrie Capital.
In connection with the execution of the Merger Agreement, the Bank entered
into an employment agreement with W. LeGrand Bennett, Jr., as Executive Vice
President. Mr. Bennett's employment agreement terminates at the earlier to
occur of (i) the Effective Time or (ii) termination of the Merger Agreement.
Uwharrie Capital has agreed to reimburse the Bank for all expense related to Mr.
Bennett's employment in the event the Merger is not consummated.
Severance Plan. Uwharrie Capital will honor the Bank's Severance Plan
currently in effect as to all employees of the Bank (other than Mr. Ward and Mr.
Bennett) who are employed at the Effective Time. The
19
Severance Plan provides that if an employee is terminated at any time within the
24 months following the Effective Time: (i) by the employee because (a) such
employee was requested to work outside of Anson County or (b) the employee's
base compensation was reduced; or (ii) by Uwharrie Capital without cause,
Uwharrie Capital will pay severance compensation to such employee calculated in
accordance with the Severance Plan.
Employees and Benefit Plans. The Company's and the Bank's employees who
are employed by Uwharrie Capital at the Effective Time will be eligible to
receive all employee benefits and to participate in all benefit plans provided
by Uwharrie Capital on the same basis as applicable to newly hired employees of
Uwharrie Capital with full credit for prior service except for purposes of
calculating benefits under Uwharrie' pension plan. Employees also will have the
opportunity to participate in Uwharrie' 401(k) savings plan and the Employee
Stock Ownership Plan with credit for their full years of service with the Bank
for purposes of eligibility and vesting. After the Effective Time, the Bank's
pension plan will be terminated and any benefits due the Bank employees under
such pension plan shall be distributed as directed by each employee.
For the calendar year during which the Effective Time occurs, Uwharrie
Capital will grant to each Bank employee a number of days of sick leave and
vacation leave, respectively, equal, in each case, to (i) the full number of
such days to which the employee would be entitled for that year, based on his or
her credited years of service and in accordance with Uwharrie' standard leave
policies, less (ii) the number of days of sick leave and vacation used by the
employee as an employee of the Bank during that calendar year.
Each person's employment with Uwharrie Capital shall be on an "at will"
basis and Uwharrie Capital retains the right to terminate such person's
employment in accordance with its employment practices and policies.
Employee Salary Increase and Bonus. At the Effective Time, Uwharrie
Capital will increase each retained employee's (except for Eugene M. Ward and W.
LeGrand Bennett, Jr.) existing base salary by five percent plus an additional
$60. If an employee of the Bank remains an employee of Uwharrie Capital for the
90-day period following the closing of the Merger, such employee, except for Mr.
Ward and Mr. Bennett will receive a bonus equal to each such employee's two-
month salary.
Directors' and Officers' Liability Insurance and Indemnification.
Immediately prior to the closing the Merger, Anson intends to purchase "tail"
insurance coverage under and in the same amount of coverage as is provided by
its then current directors' and officers' liability insurance policy effective
for a three-year period. In addition, for the three-year period following the
Effective Time, Uwharrie Capital will indemnify each present and former
director, officer and employee of Anson or the Bank as of the Effective Time
again any costs and expenses incurred in connection with any claim, suit or
proceeding arising out of matters existing or occurrency at or prior to the
Effective Time to the fullest extent entitled under the NCBCA and Anson's and
the Bank's charter documents.
MANAGEMENT AND ADDITIONAL INFORMATION
Certain information relating to the Company's directors and executive
officers, executive and director compensation and compensation plans, certain
relationships and related transactions and other related matters as to the
Company is contained under "PROPOSAL 2-ELECTION OF DIRECTORS."
EXPENSES OF THE MERGER
The Merger Agreement provides that whether or not the Merger Agreement is
terminated or the transactions contemplated thereunder are consummated, the
Company and Uwharrie Capital each shall pay its own legal, accounting and
financial advisory fees and all other costs and expenses incurred in connection
with the proposed transactions; provided, however, that if any party to the
Merger Agreement breaches the Merger Agreement by willfully or intentionally
failing to perform or willfully or intentionally violating any of its
obligations, agreements or covenants under certain provisions of the Merger
Agreement, such party shall be obligated to pay all the expenses of the other
party(ies).
ACCOUNTING TREATMENT
Uwharrie Capital will use the purchase method of accounting in connection
with the Merger.
EFFECT OF THE MERGER THE RIGHTS OF THE COMPANY'S STOCKHOLDERS
20
As a result of the Merger, holders of Anson common stock will exchange
their shares for cash. Under the Company's current charter, stockholders have
voting rights with respect to certain matters relating to the Company, including
the election of directors. After the Merger, stockholders of the Company will
not be stockholders of the Company, Uwharrie Capital or the Bank and, therefore,
will have no voting rights with respect to the Company, Uwharrie Capital, or the
Bank, unless such stockholders otherwise own or purchase voting securities of
Uwharrie Capital.
THE STOCK OPTION AGREEMENT
In connection with, and as an inducement to Uwharrie Capital's willingness
to enter into the Merger Agreement, Uwharrie Capital and Anson executed the
Stock Option Agreement, dated August 3, 1999, pursuant to which Anson granted to
Uwharrie Capital an option to acquire up to 111,173 shares of Anson's common
stock (the "Option Shares") (as such number may be adjusted under the Stock
Option Agreement) at a purchase price of $18.50 per share, as such price may be
adjusted under the Stock Option Agreement (the "Purchase Price"). The Option
Shares are equal to 19% of Anson's outstanding common stock as of August 3,
1999. The Stock Option Agreement provides that should Anson issue any
additional shares of its common stock other than pursuant to the Stock Option
Agreement, the number of Option Shares will be adjusted to maintain the
foregoing percentage.
Uwharrie Capital may exercise the Option Shares, in whole or in part, at
any time and from time to time following the occurrence of a Purchase Event. A
Purchase Event is defined as (a) Anson, without Uwharrie Capital's consent,
authorizing, recommending, publicly proposing or publicly announcing an
intention to authorize, recommend or propose, or entering into an expression of
intent or agreement with any person other than Uwharrie Capital, to effect an
"Acquisition Transaction" (as defined below), or (b) the acquisition by any
person other than Uwharrie Capital of beneficial ownership, or the right to
acquire beneficial ownership, of 20% or more of the outstanding shares of
Anson's common stock. An Acquisition Transaction is (i) a merger, consolidation
or similar transaction involving Anson or any of its subsidiaries, (ii) the
sale, lease, exchange or other disposition of 20% or more of the consolidated
assets of Anson and its subsidiaries without the consent of Uwharrie Capital, or
(iii) the issuance, sale or other disposition (including by way of a merger,
consolidation, share exchange or any similar transaction) of securities having,
or securities convertible into, or exchange for, securities having, 20% or more
of the voting power of the outstanding voting securities of Anson.
Under the Stock Option Agreement, the option will terminate upon the
earliest to occur of (a) the Effective Time; (b) the termination of the Merger
Agreement other than as a result of Anson's breach of any covenant prior to the
occurrence of a Purchase Event; and (c) six months after the termination of the
Merger Agreement following the occurrence of a Purchase Event.
APPRAISAL RIGHTS
The stockholders of the Company may be entitled to dissent from the Merger
and obtain payment of the fair value of their shares under Article 13 of the
NCBCA. A copy of Article 13 is attached hereto as Appendix C.
A stockholder who wishes to assert dissenters' rights (1) must give to the
Company, and the Company must actually receive, before the vote is taken at the
Annual Meeting, written notice of his or her intent to demand payment for his or
her shares if the Merger is effectuated and (2) must not vote his or her shares
in favor of the Merger Agreement. The notice must be addressed to the
Secretary, Anson Bancorp, Inc., 211 South Greene Street, Wadesboro, North
Carolina 28170. Failure to comply with these requirements will constitute a
waiver of the stockholder's right to dissent.
If the Merger is approved by the Company's stockholders, the Company shall
mail by registered or certified mail, return receipt requested, a written notice
to all stockholders who satisfied the requirements set out above (a "Dissenters'
Notice"). The Dissenters' Notice shall be sent no later than ten days after
stockholder approval and will (1) state where the payment demand must be sent
and where and when share certificates must be deposited; (2) inform holders of
uncertificated shares to what extent transfer of the shares will be restricted
after the payment demand is received; (3) supply a form for demanding payment;
(4) set a date by which the Company must receive the payment demand, which date
shall be not less than 30 nor more than 60 days after the date the Dissenters'
Notice is mailed; and (5) be accompanied by a copy of Article 13.
21
A stockholder sent a Dissenters' Notice must demand payment and deposit his
or her certificates for shares of Anson common stock in accordance with the
terms of the Dissenters' Notice. A stockholder who does not satisfy the
foregoing requirements is not entitled to payment for his or her shares under
Article 13.
As soon as the Merger is effected or within 30 days after receipt of a
payment demand, whichever is later, the Company shall pay each dissenter who
demanded payment and deposited his or her share certificates, the amount the
Company estimates to be the fair value of his or her shares of Anson common
stock, plus interest accrued to the date of payment. If the Merger does not
occur within 60 days after the date set for demanding payment and depositing
shares, the Company will return the deposited certificates. If after returning
deposited certificates, the Merger is consummated, the Company must send a new
Dissenters' Notice and repeat the procedures described above.
A dissenter may notify the Company in writing of his or her own estimate of
the fair value of his or her shares and amount of interest due, and demand
payment of the amount in excess of the payment by the Company for the fair value
of his or her shares and interest due, if: (1) the dissenter believes that the
amount paid by the Company is less than the fair value of his or her shares of
Anson common stock or that the interest due is incorrectly calculated; (2) the
Company fails to make payment; or (3) the Company, having failed to effect the
Merger, does not return the deposited certificates or release the transfer
restrictions imposed on uncertificated shares within 60 days after the date set
for demanding payment. A dissenting stockholder to whom the Company made
payment must make his supplemental demand within 30 days after receipt of
payment. The stockholder waives the right to demand payment if he or she fails
to demand additional payment.
If a demand for payment remains unsettled, the stockholder may commence an
appraisal proceeding within 60 days after the earlier of (i) the date payment is
made, or (ii) the date of his or her payment demand described above and file a
complaint with the court to determine the fair value of the common stock and
accrued interest. The Company immediately will pay the dissenting stockholder
the amount the Company initially offered for settlement of the claim. A
dissenting stockholder who takes no action within this 60-day period shall be
deemed to have withdrawn the dissent and demand for payment. In the appraisal
proceeding, the court may appoint one or more persons as appraisers to receive
evidence and recommend a decision on the question of fair value. Each dissenter
made a party to the appraisal proceeding is entitled to a judgment for that
amount, if any, by which the fair value of the shares, as determined by the
court, plus interest, exceeds the amount paid by the Company to the dissenting
stockholder. The fair value of the common stock as determined in the appraisal
proceeding could be more than, the same as, or less than that produced by the
Merger. At the conclusion of the proceeding, the court will assess the costs
and expenses of such proceeding (including reasonable compensation for and the
expenses of appraisers) and may assess the fees and expenses of counsel and
experts in amounts the court finds equitable: (i) against the Company and in
favor of all dissenting stockholders of the Company if the court finds that the
Company did not substantially comply with the requirements of Article 13, or
(ii) against either the Company or any dissenting stockholder if the court finds
that the party against whom the fees and expenses are assessed acted
arbitrarily, vexatiously or not in good faith with respect to the rights
provided by Article 13.
BECAUSE ARTICLE 13 CONTAINS MANY DETAILED PROVISIONS AND REQUIREMENTS, EACH
DISSENTING STOCKHOLDER SHOULD CONSULT WITH HIS OR HER OWN LEGAL COUNSEL
CONCERNING THE SPECIFIC PROCEDURES AND AVAILABLE REMEDIES UNDER ARTICLE 13. ANY
FAILURE TO FOLLOW THE SPECIFIC PROCEDURES SET FORTH IN ARTICLE 13 MAY RESULT IN
A STOCKHOLDER LOSING THE RIGHT TO CLAIM FAIR VALUE AS DESCRIBED ABOVE.
THE RETURN OF A SIGNED UNMARKED PROXY BY A STOCKHOLDER OR A STOCKHOLDER
VOTE AGAINST THE MERGER ALONE WILL NOT SATISFY THE WRITTEN NOTICE REQUIREMENT
SET FORTH ABOVE. A SEPARATE WRITTEN NOTICE MUST BE DELIVERED BY THE STOCKHOLDER
TO THE COMPANY.
THE BOARD OF DIRECTORS RECOMMENDS THAT STOCKHOLDERS VOTE FOR THE MERGER.
---
TO BE APPROVED, A MAJORITY OF THE ISSUED AND OUTSTANDING SHARES ENTITLED TO VOTE
AT THE ANNUAL MEETING MUST VOTE IN FAVOR OF THE MERGER, IN PERSON OR BY PROXY.
INFORMATION ABOUT THE COMPANY AND THE BANK
22
The Company is a bank holding company registered with the Federal Reserve
under the BHCA and the savings bank holding company laws of North Carolina. The
Company's and the Bank's principal office is located at 211 South Greene Street,
Wadesboro, North Carolina. The Company's activities consist of investing the
proceeds of its initial public offering which were retained at the holding
company level and owning the Bank. The Company's principal source of income is
earnings on its investments. In addition, the Company will receive any
dividends which are declared and paid by the Bank on its capital stock.
The Bank was originally chartered in 1889 and has been a member of the
Federal Home Loan Bank system since 1939. The deposits of the Bank are insured
by the Savings Association Insurance Fund of the Federal Deposit Insurance
Corporation (the "FDIC") to the maximum amount permitted by law.
The Bank conducts business through its full service office in Wadesboro,
North Carolina. The Bank is a community-oriented financial institution which
offers a variety of financial services to meet the needs of the communities it
serves. The Bank is principally engaged in the business of attracting deposits
from the general public and using such deposits to make one-to-four-family
residential real estate loans, nonresidential real estate loans, construction
loans and loans secured by deposit accounts.
Revenues of the Bank are derived primarily from interest on loans. The
Bank also receives interest income from its investments and interest-earning
deposit balances. The Bank receives non-interest income from transaction and
service fees and other sources. The major expenses of the Bank are interest on
deposits and general and administrative expenses such as compensation and
employee benefits, federal deposit insurance premiums, data processing expenses
and occupancy and related expenses.
PRIMARY MARKET AREA
The Bank's primary market area is Anson County, North Carolina. The Bank
also makes loans to residents of Union, Stanly and Mecklenburg counties in North
Carolina from time to time. Anson County is rural with a population
approximately 25,000 located on the North Carolina/South Carolina border.
Employment in the Bank's primary market area is diversified among
manufacturing, mining, agriculture, retail and wholesale trade, government and
service. Other non-manufacturing employers include the county government,
school systems and the county hospital.
In recent years unemployment rates in Anson County have been high,
averaging 7.8% in 1998. At June 30, 1998, unemployment in Anson County was
6.8%. Management regards Anson County as a low-growth area in which there is
significant competition among financial service providers for market shares.
Due primarily to the economic factors discussed above, the Bank has limited
residential mortgage lending opportunities in its local market area and does not
anticipate that residential mortgage lending opportunities will increase in the
future because of lack of growth in the local economy. Management believes that
opportunities for future earnings growth in the Bank's primary market area are
limited in light of these factors. In addition, lower income levels and low
rates of growth in Anson County could result in an increase in the number of
delinquent or nonperforming loans and reduce the value of the collateral
securing such loans, adversely affecting the Bank's financial condition and
results of operations.
SUBSIDIARY ACTIVITIES
The Company has no subsidiaries other than the Bank. The Bank has no
subsidiaries.
EMPLOYEES
As of August 3, 1999, the Bank had six full-time employees and one part-
time employee. The employees are not represented by a collective bargaining
unit. The Bank believes its relationship with its employees to be good.
PROPERTIES
The following table sets forth the location of the Bank's principal office
in Wadesboro, as well as certain other information relating to this office as of
June 30, 1999.
23
NET BOOK VALUE DEPOSITS
Address -------------- --------------
- ------------------------------- OF PROPERTY (IN THOUSANDS)
-------------- --------------
211 South Greene Street $192,660 $15,256
- ------------------------------- -------- -------
Wadesboro, North Carolina 28170
- -------------------------------
The Bank's management considers the property to be in good condition and is
---------------------------------------------------------------------------
of the opinion that it is adequately covered by insurance. The total net book
- ------------------------------------------------------------------------------
value of the Bank's furniture, fixtures and equipment on June 30, 1999 was
- ---------------------------------------------------------------------------
$58,738. Any property acquired as a result of foreclosure or by deed in lieu of
- --------------------------------------------------------------------------------
foreclosure is classified as real estate owned until such time as it is sold or
- -------------------------------------------------------------------------------
otherwise disposed of by the Bank in an effort to recover its investment. As of
- --------------------------------------------------------------------------------
June 30, 1999, the Bank had no recorded real estate acquired in settlement
- --------------------------------------------------------------------------
loans.
- ------
Legal Proceedings
- -----------------
In the opinion of management, neither the Company nor the Bank is involved
--------------------------------------------------------------------------
in any pending legal proceedings other than routine, non-material proceedings
- -----------------------------------------------------------------------------
occurring in the ordinary course of business.
- ---------------------------------------------
Market and Dividend Information
- -------------------------------
The Company's sources of income consist of dividends paid by the Bank to
------------------------------------------------------------------------
the Company and income from investments. Consequently, declarations of cash
- ----------------------------------------------------------------------------
dividends by the Company may depend upon dividend payments by the Bank to the
- -----------------------------------------------------------------------------
Company, which are subject to various restrictions.
- ---------------------------------------------------
At the time of the Bank's conversion from mutual to stock form of ownership
---------------------------------------------------------------------------
(the "Conversion"), the Bank established a liquidation account in an amount
- ---------------------------------------------------------------------------
equal to its net worth at March 31, 1998. The liquidation account is maintained
- --------------------------------------------------------------------------------
for the benefit of eligible deposit account holders who continue to maintain
- ----------------------------------------------------------------------------
their deposit accounts in the Bank after the Conversion. Only in the event of a
- --------------------------------------------------------------------------------
complete liquidation would each eligible deposit account holder be entitled to
- ------------------------------------------------------------------------------
receive a liquidating distribution in the amount of the then-current adjusted
- -----------------------------------------------------------------------------
subaccount balance for the deposit accounts before any liquidation distribution
- -------------------------------------------------------------------------------
may be made with respect to the common stock. Dividends paid by the Bank to the
- --------------------------------------------------------------------------------
Company cannot reduce the net worth of the Bank below the amount required for
- -----------------------------------------------------------------------------
this liquidation account.
- -------------------------
Also, the Bank may not declare or pay a cash dividend if its net worth
----------------------------------------------------------------------
would be reduced below the minimum regulatory capital requirement imposed by
- ----------------------------------------------------------------------------
federal and state regulations. The FDIC requires the Bank to maintain minimum
- ------------------------------------------------------------------------------
ratios of Tier 1 capital to quarterly average total assets, Tier 1 capital to
- -----------------------------------------------------------------------------
total risk-weighted assets and total capital to risk-weighted assets of 3%, 4%
- ------------------------------------------------------------------------------
and 8%, respectively. The Bank's Tier 1 capital to quarterly average total
- ---------------------------------------------------------------------------
assets, Tier 1 capital to total risk-weighted assets and total capital to risk-
- ------------------------------------------------------------------------------
weighted assets ratios were approximately 29.4%, 68.8% and 69.9%, respectively,
- -------------------------------------------------------------------------------
at June 30, 1999. The Administrator requires a net worth equal to at least 5%
- ------------------------------------------------------------------------------
of assets. At June 30, 1999, the Bank's net worth to average assets ratio was
- ------------------------------------------------------------------------------
approximately 38%.
- ------------------
In addition, for a period of five years after the Conversion, the Bank is
-------------------------------------------------------------------------
required, under existing North Carolina regulations, to obtain prior written
- ----------------------------------------------------------------------------
approval of the Administrator before it can declare and pay a cash dividend on
- ------------------------------------------------------------------------------
its capital stock in an amount in excess of one-half of the greater of (i) its
- ------------------------------------------------------------------------------
net income for the most recent fiscal year, or (ii) the average of its net
- --------------------------------------------------------------------------
income after dividends for the most recent fiscal year and not more than two of
- -------------------------------------------------------------------------------
the immediately preceding fiscal years, if applicable. At the Administrator's
- ------------------------------------------------------------------------------
request, the Company has provided prior notice to the Administrator for the
- ---------------------------------------------------------------------------
dividend paid by the Company. Also, the Bank has obtained the Administrator's
- ------------------------------------------------------------------------------
prior approval for the dividend paid by the Bank to the Company.
- ----------------------------------------------------------------
Retained income at June 30, 1999, includes approximately $19,606 for which
--------------------------------------------------------------------------
no provision for federal income tax has been made. This amount represents an
- -----------------------------------------------------------------------------
allocation of income to bad debt deductions for tax purposes only. Payment of
- ------------------------------------------------------------------------------
dividends by the Bank out of this bad debt allocation would create taxable
- --------------------------------------------------------------------------
income equal to approximately 22% of the dividend for the Bank.
- ---------------------------------------------------------------
The Company is also subject to limits on dividend payments. The Company is
---------------------------------------------------------------------------
prohibited, under the NCBCA, from paying a dividend if such payment would (i)
- -----------------------------------------------------------------------------
cause the Company to be unable to pay its debts as they become due in the
- -------------------------------------------------------------------------
ordinary course of business or (ii) reduce the Company's total assets below the
- -------------------------------------------------------------------------------
sum of the Company's total liabilities plus any amounts which would be needed,
- ------------------------------------------------------------------------------
if the Company were to be dissolved at the time of distribution, to satisfy the
- -------------------------------------------------------------------------------
preferential rights that are superior to holders of the common stock.
- ---------------------------------------------------------------------
24
Since the Conversion, the Company has paid one dividend of $0.15 per share.
---------------------------------------------------------------------------
On June 22, 1998, the Company's common stock began trading on the over-the-
--------------------------------------------------------------------------
counter market with quotations available through the OTC Electronic Bulletin
- ----------------------------------------------------------------------------
Board. As of October 15, 1999, there were approximately 234 holders of record,
- -------------------------------------------------------------------------------
not including the number of persons or entities whose stock is held in nominee
- ------------------------------------------------------------------------------
or street name through various brokerage firms or banks. The Company's stock is
- --------------------------------------------------------------------------------
traded under the symbol "ANSN."
- -------------------------------
Based upon information provided to management by certain securities firms
-------------------------------------------------------------------------
effecting transactions in the Company's common stock, the table below gives the
- -------------------------------------------------------------------------------
high and low bids for each quarter of the Company's last fiscal year. The
- --------------------------------------------------------------------------
quotations below reflect inter-dealer prices, without retail mark-up, mark-down
- -------------------------------------------------------------------------------
or commissions and may not represent actual transactions.
- ---------------------------------------------------------
High LOW
-------- --------
JULY 1, 1998 - JUNE 30, 1999
First Quarter $12.3750 $10.6250
Second Quarter $10.9375 $ 9.7500
Third Quarter $11.0000 $ 9.7500
Fourth Quarter $11.0000 $ 9.2500
25
Selected Financial Data of the Company
The following table sets forth selected financial data and other operating
information of the Company at the dates and for the periods indicated. See "--
Market and Dividend Information" for a discussion of the limits on the Company's
ability to pay dividends in the future.
Year Ended June 30
1999 1998
(Dollars in Thousands,
Except Per Share Data)
Financial Condition Data:
Total assets $24,961 $25,066
Investments securities 12,092 12,955
Loans receivable, net 12,039 11,515
Deposits 15,256 15,440
Stockholders' equity 9,505 9,382
Book value per share 16.24 16.03
Operating Data:
Interest and dividend income 1,573 1,459
Interest expense 715 829
Net interest income 858 630
Provision for loan losses 2 2
Noninterest income 85 4
Noninterest expense 626 466
Income before income taxes 315 166
Income tax expense 110 41
Net income 205 125
Basic earnings per share 0.35 --
Diluted earnings per share 0.35 --
Dividends per share 0.15 --
Dividend payment ratio 42.86% --
Selected Other Data:
Return on average assets 0.82% 0.59%
Return on average equity 2.17% 3.15%
Average equity to average assets 37.75% 19.10%
Interest rate spread 1.77% 2.23%
Net interest margin 54.55% 43.18%
Efficiency ratio 6.30% 5.82%
Allowance for loan losses to nonperforming loans 60.54% 56.98%
Nonperforming loans to total loans 1.42% 1.55%
26
INFORMATION ABOUT UWHARRIE CAPITAL AND BANK OF STANLY
Uwharrie Capital
Uwharrie Capital, a North Carolina corporation, is a bank holding company
registered with the Federal Reserve under the BHCA. Uwharrie Capital owns all
of the outstanding shares of Bank of Stanly, a North Carolina banking
corporation. Uwharrie Capital, through Bank of Stanly and its other
subsidiaries, Strategic Alliance Corporation, BOS Agency, Inc., Corporate Data
Services, Inc. and Strategic Investment Advisors, offers a complete line of
banking, investment, insurance and data processing services through its offices
in Albemarle, North Carolina and through a variety of alternative delivery
channels. As of June 30, 1999, Uwharrie Capital had total consolidated assets
of approximately $167,650,000, total consolidated liabilities of approximately
$150,887,000 and total consolidated stockholders' equity of approximately
$16,763,000.
The principal executive office of Uwharrie Capital is located at 134 North
First Street, Albemarle, North Carolina 28002, and its telephone number at such
address is (704) 982-4415.
LEGAL PROCEEDINGS
There is no litigation instituted or pending, or, to the knowledge of
Uwharrie Capital, threatened against any Uwharrie Capital direct or indirect
subsidiary that is reasonably likely to have, individually or in the aggregate,
a material adverse effect on Uwharrie Capital's ability to perform its
obligations under the Merger Agreement.
27
Selected Financial Data of Uwharrie Capital
The following table sets forth selected financial data and other operating
information of Uwharrie Capital at the dates and for the periods indicated.
Six Months Ended
June 30 Year Ended December 31
1999 1998 1998 1997 1996 1995 1994
SUMMARY OF OPERATIONS
(Thousands, except per share)
Interest income 6,279 5,787 11,898 11,019 10,040 8,913 7,692
Interest expense 2,680 2,530 5,192 4,879 4,511 4,051 3,008
Net interest income 3,599 3,257 6,706 6,140 5,529 4,862 4,684
Provision for loan loss 80 64 119 183 137 77 181
Noninterest income 831 760 1,519 1,491 1,361 1,183 270
Noninterest expense 3,314 2,999 6,214 5,722 5,277 4,988 4,551
Income taxes 314 297 587 540 451 199 (38)
Net income 722 657 1,305 1,186 1,025 781 260
Net interest income, taxable equivalent 3,684 3,346 6,881 6,323 5,717 5,053 4,890
Cash dividends N/A N/A N/A 6 216 190 190
PER COMMON SHARE
Net income - basic .14 .14 .28 .28 .22 .17 .06
Net income - diluted .14 .14 .28 .25 .22 .17 .06
Cash dividends N/A N/A N/A N/A .10 .09 .09
Book value 3.09 2.89 3.14 2.74 2.47 2.38 2.10
SELECTED AVERAGE BALANCES
(Millions)
Assets 168 148 153 141 128 114 109
Earning assets 159 141 146 134 121 107 102
Loans 133 114 117 108 97 83 76
Investment securities 26 27 26 26 24 24 26
Core deposits 109 108 109 103 95 90 86
Total deposits 137 121 126 112 102 96 93
Stockholders' equity 16 13 13 12 11 10 10
SELECTED PERIOD-END BALANCES
(Millions)
Assets 168 148 167 146 134 121 112
Earning assets 158 141 159 138 126 114 104
Loans 127 114 132 114 101 91 80
Investment securities 31 27 24 24 25 23 24
Core deposits 112 111 112 108 98 91 83
Total deposits 131 121 139 117 105 96 93
Stockholders' equity 17 13 16 13 11 11 8
SELECTED RATIOS
Return on average assets .87% .89% .85% .84% .80% .69% .24%
Return on average equity 8.88% 10.30% 9.67% 10.04% 9.22% 7.48% 2.58%
Average equity to average assets 9.75% 8.67% 8.82% 8.41% 8.68% 9.20% 9.39%
Dividend payout ratio N/A N/A N/A N/A 21.10% 24.28% 73.03%
28
SELECTED PER SHARE DATA OF THE COMPANY AND UWHARRIE CAPITAL
The following per share data has been derived from the Selected
Consolidated Financial Data of the Company and the Selected Consolidated
Financial Data of Uwharrie Capital contained elsewhere in this Proxy Statement.
See "INFORMATION ABOUT THE COMPANY AND THE BANK Market and Dividend Information"
for a discussion of the limits on the Company's ability to pay dividends in the
future.
ANSON BANCORP, INC.
Year Ended June 30
------------------
1999 1998
-------- -------
Per Share Data:
Net Income:
Basic $ 0.35 ----
Diluted $ 0.35 ----
Cash dividends $ 0.15 ----
Book Value $16.24 $16.03
___________________________
UWHARRIE CAPITAL CORP
Six Months Ended
June 30 Year Ended December 31
--------------- ----------------------
1999 1998 1998 1997 1996 1995 1994
Per Common Share Data:
Net income:
Basic(1) .14 .14 .28 .26 .22 .17 .06
Diluted(1) .14 .14 .28 .25 .22 .17 .06
Cash dividends N/A N/A N/A N/A .10 .09 .09
Book value(1) 3.09 2.89 3.14 2.74 2.47 2.38 2.10
_______________________
(1)Per share data for 1994 through 1998 has been adjusted to reflect a 100% stock dividend issued in 1998, a 5% stock dividend
issued in 1997 and 3% stock dividend issued in each of 1996, 1995 and 1994.
PROPOSAL 2
ELECTION OF DIRECTORS
Nominees
The Articles of Incorporation of the Company provide that the number of
directors of the Company shall not be less than five nor more than fifteen, with
the exact number within this range to be fixed from time to time by the Board of
Directors. The Board of Directors has currently fixed the size of the Board at
seven members.
The Board of Directors has nominated the seven persons named below for
election as directors to serve for the terms specified, or until their earlier
death, resignation, retirement, removal or disqualification or until their
successors are elected and qualified.
The persons named in the accompanying form of proxy intend to vote any
shares of Common Stock represented by valid proxies received by them to elect
the seven nominees listed below as directors for the terms
29
specified, unless authority to vote is withheld or such proxies are duly
revoked. Each of the nominees for election is currently a member of the Board of
Directors. In the event that any of the nominees should become unavailable to
accept nomination or election, it is intended that the proxyholders will vote to
elect in his stead such other person as the present Board of Directors may
recommend or to reduce the number of directors to be elected at the Annual
Meeting by the number of such persons unable or unwilling to serve (subject to
the requirements of the Company's Articles of Incorporation and Bylaws). The
present Board of Directors has no reason to believe that any of the nominees
named herein will be unable to serve if elected to office. In order to be
elected as a director, a nominee need only receive a plurality of the votes
cast.
The following table sets forth as to each nominee, his name, age, principal
occupation during the last five years, the term for which he has been nominated,
and the year he was first elected as a director of the Bank. All of the
nominees were appointed to serve as initial directors of the Company in
connection with its incorporation in March 1998.
AGE ON DIRECTOR
JUNE 30, PRINCIPAL OCCUPATION TERM OF BANK
NAME 1999 During Last Five Years Expires Since
- -------------------------- -------- --------------------------------------------------------- ------- --------
Preston A. Burns, Chairman 85 Retired, former President of Wadesboro Auto Supply 1999 1958
John J. Crawford 79 Retired, former owner of Crawford Motor Company 1999 1960
W. Kenneth Huntley 50 President, Huntley Oil and Gas Company, Inc. 1999 1989
Emmett S. Patterson 61 General Manager and Executive Vice President, PeeDee 1999 1988
Electric Membership Corporation; Retired Effective July
29, 1999
John R. Potter 81 Retired, former Anson County Agricultural Extension Agent 1999 1962
H. Patrick Taylor, Jr. 75 Attorney 1999 1961
Eugene M. Ward 64 President and Chief Executive Officer, Anson Savings 1999 1962
Bank, Inc.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR ALL OF THE NOMINEES FOR
---
ELECTION AS DIRECTORS.
BOARD OF DIRECTORS OF THE BANK
The Bank also has a seven member board of directors which is composed of the
same persons who are currently directors of the Company.
MEETINGS OF THE BOARD AND COMMITTEES OF THE BOARD
During fiscal 1999, the Board of Directors of the Company held ten meetings.
All of the existing directors of the Company, including the nominees for
election listed above, attended at least 75% of the aggregate number of meetings
of the Board of Directors and committees of the Board on which they served
during the year ended June 30, 1999.
The Board of Directors of the Company has a standing Audit Committee. The
Company's Audit Committee consists of Messers. Burns, Crawford, Huntley,
Patterson, Potter and Taylor. This Committee met one time in fiscal 1999. The
Audit Committee supervises examination of the assets and the liabilities and the
internal audit program of the Company and its subsidiaries and causes outside
audits to be performed on the financial statements of the Company.
In addition, the full Board of Directors acts as a nominating committee each
year prior to the annual meeting of stockholders to nominate persons for
election to the Board of Directors.
The Bank's board of directors has appointed four standing committees to
which certain responsibilities have been delegated -- the Executive Committee,
the Loan Committee, the Proxy Committee and the Nominating/Compensation
Committee. The Executive Committee, the Proxy Committee and Loan Committee
30
meet on an as needed basis. The Executive Committee did not meet during the 1999
fiscal year. The Proxy Committee met one time and the Loan Committee met 35
times during the year ended June 30, 1999.
The Board of Directors of the Company does not have a compensation
committee. The Bank's Nominating/Compensation Committee, which generally meets
annually and met one time during the year ending June 30, 1999, serves as the
Company's compensation committee and determines the compensation of the
executive officers of the Company and the Bank. The salaries of each of the
executive officers is determined based upon the executive officer's
contributions to the Bank's overall profitability, maintenance of regulatory
compliance standards, professional leadership, and management effectiveness in
meeting the needs of day to day operations. The Nominating/Compensation
Committee also compares the compensation of the Bank's executive officers with
compensation paid to executives of comparable financial institutions in North
Carolina and executives of other businesses in the Bank's market area. Mr. Ward
participates in the deliberations of the Nominating/Compensation Committee
regarding compensation of officers other than himself. He does not participate
in the discussion or decisions regarding his own compensation.
DIRECTOR COMPENSATION
Board Fees. Members of the Board of Directors receive no fees or
compensation for their service. However, all members of the Company's Board of
Directors are also directors of the Bank. For their service on the Bank's board
of directors, all members of the Bank's board of directors, including Mr. Ward,
receive an annual retainer of $600 and an additional $200 per meeting attended.
Board fees are subject to adjustment annually. The Bank's Executive Committee
members, including Mr. Ward, receive $50 per meeting attended; all of the
directors of the Bank, excluding Mr. Ward, receive $50 per month for their
services on the Loan Committee.
EXECUTIVE OFFICERS
The following table sets forth certain information with respect to the
persons who are executive officers of the Company and the Bank.
EMPLOYED BY
THE BANK OR
AGE ON POSITIONS AND OCCUPATIONS THE COMPANY
NAME June 30, 1998 During Last Five Years Since
- ----------------------- ------------- ------------------------------------- -----------
Eugene M. Ward 64 President and Chief Executive Officer 1962
Nancy H. Allen 54 Treasurer and Assistant Secretary 1964
Veda H. Edwards 59 Secretary 1959
Management Compensation
SUMMARY COMPENSATION TABLE. The following table sets forth for the fiscal
years ended June 30, 1999 and 1998 certain information as to the cash
compensation received by Mr. Ward, the Chief Executive Officer of the Company
and the Bank. There were no other executive officers whose cash compensation
exceeded $100,000 for services rendered in all capacities.
31
OTHER ANNUAL
NAME AND COMPENSATION ALL OTHER
Principal Position Year Salary/1/ Bonus ($)/3/ Compensation/4/
- --------------------------------------------- ---- ------- ------- ------------ ---------------
Eugene M. Ward, President, Chief Executive 1999 $72,000 $---/2/ ---- $2,099
Officer and Director
1998 $66,664 $6,958 ---- $1,919
1997 $64,000 $7,320 ---- $1,841
_______________________
1 Includes directors' fees of $3,000, $3,250, and $3,000 received by Mr. Ward
in 1999, 1998, and 1997 respectively.
2 Mr. Ward's bonus for fiscal year 1999 was not paid until August 1999 after
the Company's and the Bank's audit was completed. See "Bonus Compensation"
below.
3 Under the "Other Annual Compensation" category, perquisites for the fiscal
years ended June 30, 1999, 1998, and 1997 did not exceed the lesser of
$50,000 or 10% of salary and bonus as reported for Mr. Ward.
4 Represents the amount of the insurance premium paid by the Bank for term
life insurance for the benefit of Mr. Ward in fiscal 1999, 1998, and 1997.
BONUS COMPENSATION
The board of directors of the Bank has established a plan for awarding an
annual bonus to all employees of the Bank including Mr. Ward. Under the terms
of the annual bonus plan, if the profits of the Bank exceed a certain target
amount, which target amount is determined annually by the Bank's board of
directors, an aggregate amount equal to 10% of the profits of the Bank is
divided pro rata among the full-time employees based on each employee's base
salary. However, the annual bonus paid to each of the Bank's employees may not
exceed 20% of each such employee's annual base salary. However, as is the case
with the Bank's compensation arrangements in general, the Bank's bonus
compensation is subject to regulatory oversight and, therefore, could be changed
in the future in response to regulatory requirements or otherwise.
OTHER BENEFITS
The Bank maintains a non-contributory defined benefit pension plan (the
"Pension Plan") for its employees. All full-time employees of the Bank who have
completed one year of service and who are at least 21 years of age are covered
under the Pension Plan.
Participants are fully vested in amounts contributed to the Pension Plan on
their behalf after six years of service, as follows: less than 2 years of
service, 0%; 2 years, 20%; 3 years, 40%; 4 years, 60%; 5 years, 80%; 6 years,
100%. Benefits under the Pension Plan are payable in the event of the
participant's retirement, death, disability or termination of employment.
Normal retirement age under the Pension Plan is the later of (a) 65, or (b)
the fifth anniversary of the participant's joining the plan ("Normal Retirement
Age"). Subject to certain restrictions on maximum benefits required by federal
law, upon reaching Normal Retirement Age, each participant will receive a
retirement benefit normally in the form of a straight life annuity, determined
pursuant to a formula which takes into consideration a participant's "average
monthly compensation" and up to seven years of service. For purposes of the
Pension Plan, a participant's "average monthly compensation" is defined as a
participant's compensation converted to a monthly amount and then averaged over
the five consecutive plan years within the last ten calendar years immediately
preceding his retirement.
As of June 30, 1999, Mr. Ward's expected benefit under the Pension Plan at
Normal Retirement Age was $33,094 per year. It is anticipated that the Pension
Plan will be terminated in connection with the Merger.
EMPLOYMENT AGREEMENT
In connection with the Conversion, the Bank entered into an employment
agreement with Eugene M. Ward, President and Chief Executive Officer, in order
to establish his duties and compensation and to provide for
32
his continued employment with the Bank. The agreement provides for an initial
term of employment of three years. Commencing on the first anniversary date and
continuing on each anniversary date thereafter, following a performance
evaluation of the employee, the agreement may be extended for an additional year
so that the remaining term shall be three years unless written notice of non-
renewal is given by the board of directors of the Bank. The agreement also
provides that base salary shall be reviewed by the board of directors not less
often than annually. Under the terms of the employment agreement, Mr. Ward's
base salary for fiscal 1999 was $69,000.
In addition, the employment agreement provides for possible profitability
and discretionary bonuses, as described in "Bonus Compensation" and
participation in all other pension, profit-sharing or retirement plans
maintained by the Bank or by the Company for employees of the Bank, as well as
fringe benefits normally associated with Mr. Ward's office. The employment
agreement provides that it may be terminated by the Bank for cause, as defined
in the agreement, and that it may otherwise be terminated by the Bank (subject
to vested rights) or by Mr. Ward. In the event of a "change in control" (as
defined below) in lieu of continuing to be entitled to receive a profitability
bonus, Mr. Ward's base salary shall be adjusted to include an amount equal to
the average of the two previous years' annual profitability bonus and such
adjusted base salary shall be increased by a minimum of 6% annually. In
addition, the agreement will automatically be extended so that it will have a
three-year term after the change in control.
The employment agreement provides that the nature of Mr. Ward's
compensation, duties or benefits cannot be diminished following a change in
control of the Bank or the Company. For purposes of the employment agreement, a
change in control generally will occur if (i) after the effective date of the
employment agreement, any "person" (as such term is defined in Sections 3(a)(9)
and 13(d)(3) of the Exchange Act) directly or indirectly, acquires beneficial
ownership of voting stock, or acquires irrevocable proxies or any combination of
voting stock and irrevocable proxies, representing 25% or more of any class of
voting securities of either the Company or the Bank, or acquires in any manner
control of the election of a majority of the directors of either the Company or
the Bank, (ii) either the Company or the Bank consolidates or merges with or
into another corporation, association or entity, or is otherwise reorganized,
where neither the Company nor the Bank is the surviving corporation in such
transaction, or (iii) all or substantially all of the assets of either the
Company or the Bank are sold or otherwise transferred to, or are acquired by,
any other entity or group.
CERTAIN INDEBTEDNESS AND TRANSACTIONS OF MANAGEMENT
The Bank makes loans to its executive officers and directors in the ordinary
course of its business. These loans are currently made on substantially the
same terms, including interest rates, collateral and repayment terms, as those
then prevailing for comparable transactions with nonaffiliated persons, and do
not involve more than the normal risk of collectibility or present any other
unfavorable features. Applicable regulations prohibit the Bank from making
loans to its executive officers and directors at terms more favorable than could
be obtained by persons not affiliated with the Bank. The Bank's policy
concerning loans to executive officers and directors currently complies with
such regulations.
PROPOSAL 3
RATIFICATION OF SELECTION OF INDEPENDENT AUDITOR
Faulkner & Thompson, P.A., the Company's and the Bank's independent auditor
for the year ended June 30, 1999, has been selected as the Company's and the
Bank's independent auditor for the 2000 fiscal year. Such selection is being
submitted to the Company's stockholders for ratification. A representative of
Faulkner & Thompson, P.A. is expected to attend the Annual Meeting and will be
afforded an opportunity to make a statement, if he so desires, and to respond to
appropriate questions from stockholders.
THE BOARD OF DIRECTORS RECOMMENDS THAT THE STOCKHOLDERS VOTE FOR PROPOSAL 3.
---
DATE FOR RECEIPT OF STOCKHOLDER PROPOSALS
It is presently anticipated that the 2000 Annual Meeting of Stockholders
will be held in November of 2000 only if the Merger is not consummated by that
date. If the meeting is held, in order for stockholder proposals to be included
in the proxy material for that meeting, such proposals must be received by the
Secretary of the Company
33
at the Company's principal executive office not later than June 25, 2000, and
meet all other applicable requirements for inclusion therein.
In the alternative, if a stockholder follows the SEC's proxy solicitation
rules, the stockholder may commence his own proxy solicitation and present a
proposal from the floor at the 2000 Annual Meeting of Stockholders of the
Company if the Merger is not consummated. In order to do so, the stockholder
must notify the Secretary of the Company in writing, at the Company's principal
executive office no later than September 8, 2000, of his proposal. If the
stockholder does not notify the Secretary of the Company by September 8, 2000,
the Company may vote proxies under the discretionary authority granted by the
proxies solicited by the Board of Directors for such annual meeting.
The Company's Bylaws provide that, in order to be eligible for consideration
at an annual meeting of stockholders, all nominations of directors, other than
those made by the Company's Board of Directors, must be made in writing and must
be delivered to the Secretary of the Company not less than 30 days nor more than
50 days prior to the meeting at which such nominations will be made; provided,
however, if less than 21 days notice of the meeting is given to stockholders,
such nominations must be delivered to the Secretary of the Company not later
than the close of business on the seventh day following the day on which the
notice of meeting was mailed.
OTHER MATTERS
Management knows of no other matters to be presented for consideration at
the Annual Meeting or any adjournments thereof. If any other matters shall
properly come before the Annual Meeting, it is intended that the proxyholders
named in the enclosed form of proxy will vote the shares represented thereby in
accordance with their judgment, pursuant to the discretionary authority granted
therein.
MISCELLANEOUS
The Annual Report of the Company for the year ended June 30, 1999, which
includes consolidated financial statements audited and reported upon by the
Company's independent accountants, is being mailed along with this Proxy
Statement; however, it is not intended that the Annual Report be deemed a part
of this Proxy Statement or a solicitation of proxies.
THE FORM 10-KSB FILED BY THE COMPANY WITH THE SECURITIES AND EXCHANGE
COMMISSION, INCLUDING THE FINANCIAL STATEMENTS AND SCHEDULES THERETO, WILL BE
PROVIDED FREE OF CHARGE TO THE COMPANY'S STOCKHOLDERS UPON WRITTEN REQUEST
DIRECTED TO: ANSON BANCORP, INC., 211 SOUTH GREENE STREET, WADESBORO, NORTH
CAROLINA 28170, ATTENTION: EUGENE M. WARD.
By Order of the Board of Directors,
Veda H. Edwards
Secretary
Wadesboro, North Carolina
October 22, 1999
34
APPENDIX A
AGREEMENT AND PLAN
OF REORGANIZATION AND MERGER
BY AND BETWEEN
UWHARRIE CAPITAL CORP
AND
ANSON BANCORP, INC.
August 3, 1999
TABLE OF CONTENTS
ARTICLE I. AGREEMENT TO MERGE.......................................... 2
1.01. Names of Merging Corporations............................... 2
1.02. Nature of Transaction....................................... 2
1.03. Effect of Merger; Surviving Corporation..................... 2
1.04. Assets and Liabilities...................................... 2
a. Anson....................................................... 2
b. Anson Heritage.............................................. 3
1.05. Conversion of Stock......................................... 3
a. Right to Receive Cash..................................... 3
b. Exchange Procedures....................................... 4
c. Surrender of Certificates................................. 4
d. Antidilutive Adjustments.................................. 4
e. Dissenters' Rights........................................ 4
f. Lost Certificates......................................... 5
g. Outstanding Uwharrie Stock................................ 5
1.06. Articles, Bylaws and Management............................. 5
1.07. Closing; Articles of Merger; Effective Time................. 5
ARTICLE II. REPRESENTATIONS AND WARRANTIES OF ANSON.................... 6
2.01. Organization; Standing; Power............................... 6
2.02. Capital Stock............................................... 6
2.03. Principal Shareholders...................................... 7
2.04. Subsidiaries................................................ 7
2.05. Convertible Securities, Options, Etc........................ 7
2.06. Authorization and Validity of Agreement;
Recommendation of Anson's Board
of Directors............................................... 7
2.07. Validity of Transactions; Absence of
Required Consents or Waivers............................... 8
2.08. Anson Books and Records..................................... 8
2.09. Anson Reports............................................... 8
2.10. Anson Financial Statements.................................. 9
2.11. Tax Returns and Other Tax Matters........................... 9
2.12. Absence of Material Adverse Changes
or Certain Other Events.................................... 10
2.13. Absence of Undisclosed Liabilities.......................... 10
2.14. Compliance with Existing Obligations........................ 10
2.15. Litigation and Compliance with Law.......................... 11
2.16. Real Properties............................................. 12
2.17. Loans, Accounts, Notes and Other Receivables................ 12
2.18. Securities Portfolio and Investments........................ 13
2.19. Personal Property and Other Assets.......................... 14
2.20. Patents and Trademarks.............................. 14
2.21. Environmental Matters............................... 14
2.22. Absence of Brokerage or Finders Commissions......... 16
2.23. Material Contracts.................................. 16
2.24. Employment Matters; Employee Relations.............. 16
2.25. Employment Agreements; Employee Benefit Plans....... 17
2.26. Insurance........................................... 19
2.27. Insurance of Deposits............................... 19
2.28. Obstacles to Regulatory Approval.................... 20
2.29. Disclosure.......................................... 20
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF UWHARRIE....... 20
3.01. Organization; Standing; Power....................... 20
3.02. Authorization and Validity of Agreement............. 20
3.03. Validity of Transactions; Absence of
Required Consents or Waivers........................ 21
3.04. Obstacles to Regulatory Approval.................... 21
3.05. Disclosure.......................................... 21
3.06. No Shareholder Approval............................. 22
3.07. Funds Availability.................................. 22
3.08. Compliance with Capital Adequacy Guidelines......... 22
ARTICLE IV. COVENANTS OF ANSON................................ 22
4.01. Affirmative Covenants of Anson...................... 22
a. Meeting of Shareholders........................ 22
b. Preparation and Distribution of
Proxy Statement.............................. 22
c. Recommendation of Anson's
Board of Directors........................... 23
d. Conduct of Business Prior to Effective Time.... 23
e. Notice of Certain Changes or Events............ 24
f. Further Action; Instruments of Transfer, etc... 24
g. Termination and Funding of Anson Pension Plan.. 24
h. Application for Bank Charter................... 24
4.02. Negative Covenants of Anson......................... 24
a. Amendments to Articles of Incorporation
or Bylaws.................................... 24
b. Change in Capital Stock........................ 25
c. Options, Warrants and Rights................... 25
d. Dividends...................................... 25
e. Employment, Benefit or Retirement
Agreements or Plans.......................... 25
f. Increase in Compensation....................... 25
g. Accounting Practices........................... 26
h. Acquisitions; Additional Branch Offices........ 26
i. Changes in Business Practices.................. 26
j. Exclusive Merger Agreement.......................... 26
k. Acquisition or Disposition of Assets................ 27
l. Debt; Liabilities................................... 27
m. Liens; Encumbrances................................. 27
n. Waiver of Rights.................................... 28
o. Other Contracts..................................... 28
ARTICLE V. COVENANTS OF UWHARRIE..................................... 28
5.01. Board of Directors........................................ 28
5.02 Dividends................................................. 28
5.03 Inconsistent Agreements................................... 28
5.04 Reimbursement for Certain Expenses........................ 29
ARTICLE VI. MUTUAL AGREEMENTS........................................ 29
6.01. Regulatory Approvals...................................... 29
6.02. Information for Preparation of Applications
and Proxy Statement..................................... 29
6.03. Access.................................................... 30
6.04. Costs..................................................... 30
6.05. Announcements............................................. 30
6.06. Environmental Studies..................................... 30
6.07. Employees; Severance Payments
Employee Benefits....................................... 31
a. Employment Agreements............................... 31
b. Employment of Other Anson Employees................. 31
c. Severance Compensation.............................. 32
d. Employee Benefits................................... 32
e. Employee Bonus...................................... 33
6.08. Confidentiality........................................... 33
6.09. Directors' and Officers' Liability Insurance.............. 33
ARTICLE VII. CONDITIONS PRECEDENT TO MERGER.......................... 34
7.01. Conditions to all Parties' Obligations.................... 34
a. Approval by Governmental or Regulatory
Authorities; No Disadvantageous Conditions......... 34
b. Adverse Proceedings, Injunction, Etc................ 34
c. Proxy Materials..................................... 34
d. Approval by Boards of Directors and
Shareholders....................................... 34
e. Fairness Opinion.................................... 35
f. No Termination or Abandonment....................... 35
g. Articles of Merger.................................. 35
7.02. Additional Conditions to Anson's Obligations.............. 35
a. Compliance with Laws................................ 35
b. Uwharrie's Representations and Warranties and
Performance of Agreements; Officers' Certificate..... 36
c. Legal Opinion of Uwharrie Counsel...................... 36
d. Other Documents and Information from Uwharrie.......... 36
e. Acceptance by Anson's Counsel.......................... 36
7.03. Additional Conditions to Uwharrie's Obligations............. 36
a. Material Adverse Change................................ 36
b. Compliance with Laws................................... 36
c. Anson's Representations and Warranties and
Performance of Agreements; Officers' Certificate..... 37
d. Legal Opinion of Anson Counsel......................... 37
e. Other Documents and Information from Anson............. 37
f. Acceptance by Uwharrie's Counsel....................... 37
g. Certain Merger Expenses................................ 37
h. Pension Plan Expenses.................................. 37
ARTICLE VIII. TERMINATION; BREACH; REMEDIES............................ 38
8.01. Mutual Termination.......................................... 38
8.02. Unilateral Termination...................................... 38
a. Termination by Uwharrie................................ 38
b. Termination by Anson................................... 39
8.03. Breach; Remedies............................................ 39
ARTICLE IX. INDEMNIFICATION............................................ 40
9.01. Indemnification............................................. 40
ARTICLE X. INDIVIDUAL AGREEMENTS OF ANSON'S DIRECTORS.................. 41
10.01. Actions as a Directors..................................... 41
10.02. Actions as an Individual................................... 41
10.03. Definitions................................................ 42
a. Compete............................................... 42
b. Customer.............................................. 42
c. Financial Institution................................. 42
d. Person................................................ 42
ARTICLE XI. MISCELLANEOUS PROVISIONS................................... 43
11.01. "Previously Disclosed" Information......................... 43
11.02. Survival of Representations, Warranties,
Indemnification and Other Agreements..................... 43
a. Representations, Warranties and Other
Agreements.......................................... 43
b. Indemnification....................................... 43
11.03. Waiver..................................................... 43
11.04. Amendment.............................................. 43
11.05. Notices................................................ 44
11.06. Further Assurance...................................... 44
11.07. Headings and Captions.................................. 44
11.08. Entire Agreement....................................... 44
11.09. Severability of Provisions............................. 44
11.10. Assignment............................................. 44
11.11. Counterparts........................................... 45
11.12. Governing Law.......................................... 45
SIGNATURES..................................................... 45 & 46
AGREEMENT AND PLAN OF REORGANIZATION AND MERGER
BY AND BETWEEN
ANSON BANCORP, INC.
AND
UWHARRIE CAPITAL CORP
THIS AGREEMENT AND PLAN OF REORGANIZATION AND MERGER (hereinafter
called "Agreement") entered into as of the 3rd day of August 1999, by and among
ANSON BANCORP, INC. ("Anson") and UWHARRIE CAPITAL CORP ("Uwharrie").
WHEREAS, Anson is a North Carolina corporation with its principal
office and place of business located in Wadesboro, North Carolina, and is the
sole shareholder and parent company of Anson Savings Bank, Inc., a North
Carolina stock chartered savings bank (the "Bank"); and,
WHEREAS, Uwharrie is a North Carolina corporation with its principal
office and place of business located in Albemarle, North Carolina, and is a
registered bank holding company with direct and indirect banking and non-banking
subsidiaries; and,
WHEREAS, Uwharrie and Anson have agreed that it is in their mutual
best interests and in the best interests of their respective shareholders for
Anson to be merged into Uwharrie with the effect that each of the outstanding
shares of Anson's common stock will be converted into the right to receive an
amount of cash, all in the manner and upon the terms and conditions contained in
this Agreement; and,
WHEREAS, to effectuate the foregoing, Uwharrie and Anson desire to
adopt this Agreement which will provide, among other terms and conditions, that
Uwharrie will form a wholly-owned North Carolina corporation to be named Anson
Heritage, Inc. ("Anson Heritage") which will merge with Anson, causing Anson to
become the wholly-owned subsidiary of Uwharrie, and that Anson Heritage
subsequently will be merged with and into Uwharrie; and,
WHEREAS, to effectuate the foregoing, Uwharrie and Anson desire to
adopt this Agreement as a plan of reorganization in accordance with the
provisions of Section 368(a) of the Internal Revenue Code of 1986, as amended;
and,
WHEREAS, while Anson's Board of Directors has approved this Agreement,
Anson has executed this Agreement subject to the approval of its shareholders
and has agreed to present a proposal to approve the Agreement and the Plan of
Anson Heritage Merger appended hereto to its shareholders at its annual meeting
and will recommend to Anson's shareholders that they approve the Agreement and
Plan of Anson Heritage Merger and the transactions described herein; and,
WHEREAS, on the date hereof Uwharrie and Anson have entered into a Stock
Option
Agreement providing for the grant to Uwharrie by Anson of an option to purchase
certain shares of the Common Stock of Anson; and
WHEREAS, Uwharrie has executed this Agreement with the approval of its
Board of Directors, including approval of the Plan of Anson Heritage Merger and
the Plan of Uwharrie Merger and the transactions described herein; and,
NOW, THEREFORE, in consideration of the premises, the mutual benefits
to be derived from this Agreement, and of the representations, warranties,
conditions, covenants and promises herein contained, and subject to the terms
and conditions hereof, Uwharrie and Anson hereby adopt and make this Agreement
and mutually agree as follows:
ARTICLE I. AGREEMENT TO MERGE
1.01. Names of Merging Corporations. The names of the corporations
proposed to be merged are Anson Bancorp, Inc. ("Anson"), Uwharrie Capital Corp
("Uwharrie") and Anson Heritage, Inc. ("Anson Heritage").
1.02. Nature of Transaction. Subject to the provisions of this Agreement,
at the "Anson Heritage Merger Effective Time" (as defined in Paragraph 1.07
below), Anson shall be merged into and with Anson Heritage pursuant to N.C. Gen.
Stat. (S) 55-11-01 and the Plan of Anson Heritage Merger attached hereto as
Exhibit A (the "Anson Heritage Merger") and immediately thereafter, at the
"Uwharrie Merger Effective Time" (as defined in paragraph 1.07 below), Anson
Heritage as the resulting corporation from the Anson Heritage Merger shall merge
with and into Uwharrie pursuant to N.C. Gen. Stat. (S) 55-11-04 and the Plan
of Uwharrie Merger attached hereto as Exhibit B (the "Uwharrie Merger").
1.03. Effect of Merger; Surviving Corporation. Subject to the terms and
conditions of this Agreement and pursuant to the applicable provisions of North
Carolina Law (a) at the Anson Heritage Merger Effective Time and as provided in
the Plan of Anson Heritage Merger and N.C. Gen. Stat. (S) 55-11-06, the
separate corporate existence of Anson shall cease and Anson Heritage shall
continue as the surviving corporation with all of its purposes, objects, rights,
privileges, power and franchises. At the Uwharrie Merger Effective Time and as
provided in N.C. Gen. Stat. (S) 55-11-06, by reason of the Uwharrie Merger the
separate corporate existence of Anson Heritage shall cease while the corporate
existence of Uwharrie as the surviving corporation in the Uwharrie Merger shall
continue with all of its purposes, objects, rights, privileges, powers and
franchises, all of which shall be unaffected and unimpaired by the Uwharrie
Merger. Following the Uwharrie Merger, the Bank shall continue to operate as the
wholly-owned savings bank subsidiary of Uwharrie and, as a North Carolina
savings bank, will continue to conduct its business and the business of the Bank
at the then legally established office of the Bank. The duration of the
corporate existence of Uwharrie, as the surviving corporation, shall be
perpetual and unlimited.
1.04. Assets and Liabilities.
a. Anson. At the Anson Heritage Merger Effective Time and by
reason of the
Anson Heritage Merger, and in accordance with N.C. Gen. Stat. (S) 55-11-06, all
of Anson's property, assets and rights of every kind and character (including
without limitation all real, personal or mixed property, all debts due on
whatever account, all other choses in action and all and every other interest of
or belonging to or due to Anson, whether tangible or intangible) shall be
transferred to and vest in Anson Heritage, and Anson Heritage shall succeed to
all the rights, privileges, immunities, powers, purposes and franchises of a
public or private nature of Anson, all without any conveyance, assignment or
further act or deed; and, Anson Heritage shall become responsible for all of the
liabilities, duties and obligations of every kind, nature and description of
Anson as of the Anson Heritage Merger Effective Time.
b. Anson Heritage. At the Uwharrie Merger Effective Time and by
reason of the Uwharrie Merger, and in accordance with N.C. Gen. Stat.
(S) 55-11-06, all of Anson Heritage's property, assets and rights of every kind
and character (including without limitation all real, personal or mixed
property, all debts due on whatever account, all other choses in action and all
and every other interest of or belonging to or due to Anson Heritage, whether
tangible or intangible) shall be transferred to and vest in Uwharrie, and
Uwharrie shall succeed to all the rights, privileges, immunities, powers,
purposes and franchises of a public or private nature of Anson Heritage, all
without any conveyance, assignment or further act or deed; and Uwharrie shall
become responsible for all of the liabilities, duties and obligations of every
kind, nature and description of Anson Heritage as of the Uwharrie Merger
Effective Time.
1.05. Conversion of Stock.
a. Right to Receive Cash. At the Anson Heritage Merger Effective
Time, all rights of Anson's shareholders with respect to all then outstanding
shares of Anson's no par value common stock ("Anson Stock") shall cease to exist
and, as consideration for and to effectuate the Anson Heritage Merger (and
except as otherwise provided below) each such outstanding share of Anson Stock
(other than any shares held by shareholders who properly exercise "dissenters'
rights" pursuant to Article 13 of the North Carolina Business Corporation Act as
provided below) shall be converted, without any action on the part of the holder
of such share, Uwharrie, Anson or Anson Heritage, into the right to receive
$17.30 in cash.
At the Anson Heritage Merger Effective Time, and without any action by
Anson, Uwharrie or any holder of Anson stock, Anson's stock transfer books shall
be closed as to shareholders of Anson Stock immediately prior to the Anson
Heritage Merger Effective Time and, thereafter, no transfer of Anson Stock by
any such holder may be made or registered; and the holders of shares of Anson
Stock shall cease to be, and shall have no further rights as, shareholders of
Anson other than as provided herein. Following the Anson Heritage Merger
Effective Time, certificates representing shares of Anson Stock outstanding at
the Anson Heritage Merger Effective Time (herein sometimes referred to as "Old
Certificates") shall evidence only the right of the registered holder thereof to
receive, and may be exchanged for, (i) a check for the amount of cash to which
such holders shall have become entitled on the basis of the per share price set
forth above, or, (ii) in the case of shares of Anson Stock held by shareholders
who properly exercise "dissenters' rights" pursuant to Article 13 of the North
Carolina Business Corporation Act as provided below,
cash as provided in Article 13 of the North Carolina Business Corporation Act.
b. Exchange Procedures. At the Anson Heritage Merger Effective
Time, Uwharrie shall issue and deliver to Bank of Stanly (or such other bank as
Uwharrie shall designate), in its capacity as Uwharrie's agent for purposes of
the exchange of Anson Stock for cash (the "Exchange Agent"), one check
representing the aggregate amount of cash to which all holders of Anson Stock
shall have become entitled as provided above. As promptly as practicable
following the Anson Heritage Merger Effective Time, Uwharrie shall send or cause
to be sent to each former shareholder of Anson of record immediately prior to
the Anson Heritage Merger Effective Time written instructions and transmittal
materials in a form mutually agreed upon by Uwharrie and Anson (a "Transmittal
Letter") for use in surrendering Old Certificates to the Exchange Agent. Upon
the proper delivery to the Exchange Agent (in accordance with the above
instructions) of a properly completed Transmittal Letter by a former shareholder
of Anson, the Exchange Agent shall issue a check in the name of such shareholder
for the amount of cash to which such shareholder shall have become entitled and
shall deliver the same to such shareholder entitled thereto upon and in exchange
for the surrender and delivery to the Exchange Agent by said individual
shareholder of his or her Old Certificates.
c. Surrender of Certificates. Subject to Paragraph 1.05.f. below,
no check shall be delivered to any former shareholder of Anson unless and until
such shareholder shall have properly surrendered to the Exchange Agent the Old
Certificate(s) formerly representing his or her shares of Anson Stock, together
with a properly completed Transmittal Letter. No dividend or other distribution
shall be payable with respect to any shares of Anson Stock subsequent to the
Anson Heritage Merger Effective Time. The Exchange Agent shall continue to hold
the amount payable to each former shareholder of Anson until such amount is
claimed by that shareholder in accordance with the above procedures or until
such amount is required to be paid or delivered to a public official pursuant to
an applicable abandoned property, escheat, or similar law. Neither Uwharrie,
Anson, nor the Exchange Agent, shall have any obligation to pay any interest on
any amount of cash payable to a former shareholder of Anson for any period prior
to such payment. Further, and notwithstanding any other provision of this
Agreement, neither Uwharrie, Anson, nor the Exchange Agent shall be liable to a
former holder of Anson Stock for any amount paid or delivered in good faith to a
public official pursuant to any such applicable abandoned property, escheat, or
similar law.
d. Antidilutive Adjustments. If, following the date of this
Agreement, Anson shall change the number of outstanding shares of Anson Stock as
a result of a dividend payable in shares of Anson Stock, a stock split, a
reclassification or other subdivision or combination of outstanding shares, or
issue any additional shares of Anson Stock then an appropriate and proportionate
adjustment will be made to decrease the amount of cash to be paid for each of
the outstanding shares of Anson Stock.
e. Dissenters' Rights. Any shareholder of Anson who has and
properly exercises the right of dissent and appraisal with respect to the Merger
as provided in Article 13 of the North Carolina Business Corporation Act
("Dissenters' Rights") shall be entitled to receive
payment of the fair value of his or her shares of Anson Stock in the manner and
pursuant to the procedures provided therein. Shares of Anson Stock held by
persons who exercise Dissenters' Rights shall not be converted into the right to
receive cash as provided in Paragraph 1.05.a. above. However, if any shareholder
of Anson who exercises Dissenters' Rights shall fail to perfect his or her
Dissenters' Rights, or effectively shall waive or lose such right, then each of
his or her shares of Anson Stock, at Uwharrie's sole option, shall be deemed to
have been converted into the right to receive cash as of the Anson Heritage
Merger Effective Time as provided in Paragraph 1.05.a. above.
f. Lost Certificates. Any shareholder of Anson whose certificate
evidencing shares of Anson Stock has been lost, destroyed, stolen or otherwise
is missing shall be entitled to receive a check representing the amount of cash
to which he or she is entitled in accordance with and upon compliance with
conditions imposed by the Exchange Agent or Uwharrie pursuant to the provisions
of N.C. Gen. Stat. (S) 25-8-405 and N.C. Gen. Stat. (S) 25-8-104 (including
without limitation a requirement that the shareholder provide a lost instruments
indemnity or surety bond in form, substance and amount satisfactory to the
Exchange Agent and Uwharrie).
g. Outstanding Uwharrie Stock. The status of the shares of the
capital stock of Uwharrie which are outstanding immediately prior to the Anson
Heritage Merger Effective Time shall not be affected by the Merger.
1.06. Articles, Bylaws and Management. The Articles of Incorporation and
Bylaws of Anson Heritage in effect at the Anson Heritage Merger Effective Time,
shall be the Articles of Incorporation and bylaws of Anson Heritage as the
surviving corporation. The officers and directors of Anson Heritage in office
at the Anson Heritage Merger Effective Time shall continue to hold such offices
until removed as provided by law or until the election or appointment of their
respective successors. The Articles of Incorporation and bylaws of Uwharrie in
effect at the Uwharrie Merger Effective Time shall be the Articles of
Incorporation and bylaws of Uwharrie as the surviving corporation. The officers
and directors of Uwharrie in office at the Uwharrie Merger Effective Time shall
continue to hold such offices until removed as provided by law or until the
election or appointment of their respective successors.
1.07. Closing; Articles of Merger; Effective Time. The closing of the
transactions contemplated by this Agreement (the "Closing") shall take place at
the offices of Uwharrie in Albemarle, North Carolina, or at such other place as
Uwharrie shall designate, on a date mutually agreed to by Uwharrie and Anson
(the "Closing Date") after the expiration of any and all required waiting
periods following the effective date of required approvals of the Anson Heritage
Merger by governmental or regulatory authorities, the shareholders of Anson and
the satisfaction of all other conditions precedent thereto specified in Article
VII hereof (but in no event more than thirty (30) days following the expiration
of all such required waiting periods). At the Closing, Uwharrie, Anson and
Anson Heritage shall take such actions (including without limitation the
delivery of certain closing documents) as are required herein and as shall
otherwise be required by law to consummate the Anson Heritage Merger and cause
it to become effective, and shall execute
Articles of Anson Heritage Merger under North Carolina law which shall contain a
"Plan of Merger" substantially in the form attached as Exhibit A hereto.
Subject to the terms and conditions set forth herein (including
without limitation the receipt of all required approvals of government and
regulatory authorities), the Anson Heritage Merger shall be effective on the
date and at the time (the "Anson Heritage Merger Effective Time") designated in
the Articles of Anson Heritage Merger executed at the Closing and filed with the
North Carolina Secretary of State in accordance with law; immediately following
the Anson Heritage Merger Effective Time, Uwharrie and Anson Heritage shall take
such actions (including without limitation the delivery of certain closing
documents, as are required herein and shall otherwise be required by law) to
consummate the Uwharrie Merger and cause it to become effective. The Uwharrie
Merger shall become effective on the same date as the Anson Heritage Merger, at
such time following the Anson Heritage Merger Effective Time as Uwharrie
specifies in its Articles of Merger (which shall contain a "Plan of Merger"
substantially in the form of Exhibit B hereto), filed with the North Carolina
Secretary of State; provided, however, that the date and time so specified as
the Effective Time for either the Anson Heritage Merger or the Uwharrie Merger
shall in no event be more than ten days following the Closing Date. If either
the Articles of Merger for the Anson Heritage Merger or the Uwharrie Merger do
not designate a date or specify a time as the Effective Time, then the
respective Effective Times shall be that date and time when the Anson Heritage
Merger Articles of Merger or Uwharrie Merger Articles of Merger are properly
filed with the North Carolina Secretary of State.
ARTICLE II. REPRESENTATIONS AND WARRANTIES OF ANSON
Except as otherwise specifically provided herein or as "Previously
Disclosed" (as defined in Paragraph 11.01. below) to Uwharrie, Anson hereby
makes the following representations and warranties to Uwharrie.
2.01. Organization; Standing; Power. Anson and the Bank each (i) is duly
organized and incorporated, validly existing and in good standing (as a business
corporation and a savings bank, respectively) under the laws of North Carolina;
(ii) has all requisite corporate power and authority to own, lease and operate
its properties and to carry on its business as now being conducted; (iii) is
duly qualified to do business and is in good standing in each other jurisdiction
in which the character of the properties owned, leased or operated by it therein
or in which the transaction of its business makes such qualification necessary,
except where failure so to qualify would not have a material adverse effect on
Anson and the Bank considered as one enterprise; and, (iv) is not transacting
business or operating any properties owned or leased by it in violation of any
provision of federal or state law or any rule or regulation promulgated
thereunder, which violation would have a material adverse effect.
2.02. Capital Stock. Anson's authorized capital stock consists of
20,000,000 shares of common stock, no par value per share and 5,000,000 shares
of preferred stock, no par value per share. As of the date of this Agreement,
585,124 shares of Anson Stock are issued and outstanding.
No shares of Anson's preferred stock are issued and outstanding.
The Bank's authorized capital stock consists of 100,000 shares of
common stock, no par value per share ("Bank Stock"), of which 1,000 shares are
issued and outstanding and constitutes the Bank's only outstanding security.
The outstanding shares of Bank Stock are owned of record and beneficially by
Anson.
Each outstanding share of Anson Stock and Bank Stock, respectively,
(i) has been duly authorized and is validly issued and outstanding, and is fully
paid and nonassessable, (ii) has not been issued in violation of the preemptive
rights of any shareholder, and (iii) has been issued pursuant to and in
compliance with the registration requirements under the Securities Act of 1933,
as amended, or of an applicable exemption from such registration requirements.
2.03. Principal Shareholders. No person or entity is known to Anson to
beneficially own, directly or indirectly, more than 5% of the outstanding shares
of Anson Stock.
2.04. Subsidiaries. Anson is the record and beneficial owner of all of
the issued and outstanding shares of capital stock of the Bank. Otherwise,
neither Anson nor the Bank has any subsidiary (direct or indirect), nor owns any
stock or other equity interest in any corporation, service corporation, joint
venture, partnership or other entity.
2.05. Convertible Securities, Options, Etc. Neither Anson nor the Bank
has any outstanding (i) securities or other obligations (including debentures or
other debt instruments) which are convertible into shares of Anson Stock or Bank
Stock or any other securities of Anson or the Bank, (ii) options, warrants,
rights, calls or other commitments of any nature which entitle any person to
receive or acquire any shares of Anson Stock or Bank Stock or any other
securities of Anson or the Bank, or (iii) plan, agreement or other arrangement
pursuant to which shares of Anson Stock or Bank Stock or any other securities of
Anson or the Bank, or options, warrants, rights, calls or other commitments of
any nature pertaining thereto, have been or may be issued.
2.06. Authorization and Validity of Agreement; Recommendation of Anson's
Board of Directors. This Agreement has been duly and validly approved by
Anson's Board of Directors and executed and delivered on Anson's behalf.
Subject only to approval of this Agreement by the shareholders of Anson in the
manner required by law (as contemplated by Paragraph 4.01.a. below) and required
approvals of regulatory authorities (as contemplated by Paragraph 7.01.a.
below), (i) Anson has the corporate power and authority to execute and deliver
this Agreement and to perform its obligations and agreements and carry out the
transactions described herein, (ii) all corporate proceedings and approvals
required to authorize Anson to enter into this Agreement and to perform its
obligations and agreements and carry out the transactions described herein have
been duly and properly completed or obtained, and (iii) this Agreement has been
executed on behalf of Anson and constitutes a valid and binding agreement of
Anson enforceable in accordance with its terms (except to the extent
enforceability may be limited by (A) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws from time to time in effect which
affect creditors' rights generally (B) by legal and equitable limitations on the
availability of injunctive relief, specific
performance and other equitable remedies, and (C) general principles of equity
and applicable laws or court decisions limiting the enforceability of
indemnification provisions).
Anson's Board of Directors has adopted resolutions to the effect that
it considers the Anson Heritage Merger to be advisable and in the best interests
of Anson and its shareholders, and that it recommends that Anson's shareholders
vote their shares of Anson Stock at the Shareholder Meeting (as defined below)
in favor of ratification and approval of this Agreement and the Plan of Anson
Heritage Merger contained herein.
2.07. Validity of Transactions; Absence of Required Consents or Waivers.
Except where the same would not have a material adverse effect on Anson and the
Bank considered as one enterprise, neither the execution and delivery of this
Agreement, nor the consummation of the transactions described herein, nor
compliance by Anson with any of its obligations or agreements contained herein,
will: (i) conflict with or result in a breach of the terms and conditions of, or
constitute a default or violation under any provision of, Anson's Articles of
Incorporation or Bylaws, any contract, agreement, lease, mortgage, note, bond,
indenture, license, or obligation or understanding (oral or written) to which
Anson or the Bank is bound or by which it, its business, capital stock or any of
its properties or assets may be affected; (ii) result in the creation or
imposition of any lien, claim, interest, charge, restriction or encumbrance upon
any of Anson's or the Bank's properties or assets; (iii) violate any applicable
federal or state statute, law, rule or regulation, or any judgment, order, writ,
injunction or decree of any court, administrative or regulatory agency or
governmental body; (iv) result in the acceleration of any obligation or
indebtedness of Anson or the Bank; or, (v) interfere with or otherwise adversely
affect Anson's or the Bank's ability to carry on its business as presently
conducted, or interfere with or otherwise adversely affect the ability of
Uwharrie to carry on such business after the Effective Time.
No consents, approvals or waivers are required to be obtained from any
person or entity in connection with Anson's execution and delivery of this
Agreement, or the performance of its obligations or agreements or the
consummation of the transactions described herein, except for required approvals
of governmental or regulatory authorities as described in Paragraph 7.01.a.
below and of Anson's shareholders as described in Paragraph 7.01.d. below.
2.08. Anson Books and Records. Anson's and the Bank's books of account
and business records have been maintained in substantial compliance with all
applicable legal and accounting requirements and in accordance with good
business practices, and such books and records are complete and reflect
accurately in all material respects Anson's and the Bank's respective items of
income and expense and all of their respective assets, liabilities and
shareholders' equity. The respective minute books of Anson and the Bank
accurately reflect in all material respects the corporate actions which their
respective shareholders and board of directors, and all committees thereof, have
taken during the time periods covered by such minute books. All such minute
books have been or will be made available to Uwharrie and its representatives.
2.09. Anson Reports. Since June 19, 1998, and where the failure to file
has had or could have a material adverse effect on Anson and the Bank considered
as one enterprise, management,
Anson and the Bank each has filed all reports, registrations and statements,
together with any amendments required to be made with respect thereto, that were
required to be filed with (i) the Federal Deposit Insurance Corporation (the
"FDIC"), (ii) the Board of Governors of the Federal Reserve System (the "FRB"),
(iii) the Securities and Exchange Commission (the "SEC"), (iv) the Administrator
of the North Carolina Savings Institutions Division (the "Administrator"), or
(v) any other governmental or regulatory authorities having jurisdiction over
Anson or the Bank. All such reports, registrations and statements filed by Anson
or the Bank with the FDIC, the FRB, the SEC, the Administrator or other such
regulatory authority are collectively referred to herein as the "Anson Reports."
As of their respective dates, to the best knowledge and belief of Anson's
management, each Anson Report complied in all material respects with all the
statutes, rules and regulations enforced or promulgated by the regulatory
authority with which it was filed (as the same were in effect at the time of
such filing) and did 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 therein, in light of the circumstances under which they were made,
not misleading; and, neither Anson nor the Bank has been notified that any such
Anson Report was deficient in any material respect as to form or content. Anson
shall deliver to Uwharrie, simultaneous with the filing thereof, a copy of each
report, registration, statement or other regulatory filing made by it or the
Bank with the FDIC, the SEC, the FRB, the Administrator or any other such
regulatory authority following the date of this Agreement.
2.10. Anson Financial Statements. Anson has delivered to Uwharrie a copy
of (i) Anson's or the Bank's, as the case may be, condensed statements of
financial condition as of June 30, 1998 and March 31, 1999 and its condensed
statements of income for the three months ended March 31, 1998 and 1999,
condensed statements of income for the nine months ended March 31, 1998 and 1999
and condensed statements of cash flows for the nine months ended March 31, 1999,
all unaudited (the "Anson Financial Statements"); and, following the date of
this Agreement, Anson promptly will deliver to Uwharrie all other annual or
interim financial statements hereafter prepared by or for Anson. The Anson
Financial Statements and (including any related notes and schedules thereto) (i)
are in accordance with Anson's books and records, and (ii) were prepared in
accordance with generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods indicated and present fairly Anson's
consolidated financial condition, assets and liabilities, results of operations,
and changes in cash flows as of the dates indicated and for the periods
specified therein. The Anson Financial Statements (except for the interim
periods) have been audited by Anson's independent certified public accountants,
Faulkner and Thompson, P.A.
2.11. Tax Returns and Other Tax Matters. (i) Anson and the Bank each
has timely filed or caused to be filed all federal, state and local tax returns
and reports which are required by law to have been filed, and, to the best
knowledge and belief of management of Anson, all such returns and reports were
true, correct and complete and contained all material information required to be
contained therein; (ii) all federal, state and local income, profits, franchise,
sales, use, occupation, property, excise and other taxes (including interest and
penalties), charges and assessments which have become due from or been assessed
or levied against Anson or the Bank or their property have been fully paid
(other than taxes or charges which are not yet delinquent, are being contested
in good faith, have not been finally determined or for which there are adequate
reserves that were established on or before June 30, 1998), and, with respect to
any such taxes to become due from Anson or the Bank for any period or periods
through and including June 30, 1998, adequate provision has been made for the
payment of all such taxes and such provision is reflected in the Anson Financial
Statements; (iii) the income, profits, franchise, sales, use, excise,
withholding, employment and other tax returns of Anson and the Bank have not
been subject to audit by the Internal Revenue Service ("IRS") or the Department
of Revenue of the State of North Carolina in the last ten years and neither
Anson nor the Bank has received any indication of the pendency of any audit or
examination in connection with any tax return or report and has no knowledge
that any such return or report is subject to adjustment; and (iv) neither Anson
nor the Bank has executed any waiver or extended the statute of limitations (or
been asked to execute a waiver or extend a statute of limitation) with respect
to any tax year, the audit of any tax return or report or the assessment or
collection of any tax. Any deferred taxes of Anson or the Bank have been
provided for in the Anson Financial Statements in all material respects.
2.12. Absence of Material Adverse Changes or Certain Other Events.
a. Except for changes in laws or regulations or interest rates that
affect financial institutions generally and for required changes in accounting
methods, since June 30, 1998, Anson and the Bank have conducted their respective
businesses only in the ordinary course, and there has been no material adverse
change, and there has occurred no event or development and, to the best
knowledge of management of Anson, there currently exists no condition or
circumstance which, with the lapse of time or otherwise, may or could cause,
create or result in a material adverse change, in or affecting the financial
condition of Anson or the Bank or in their results of operations, prospects,
business, assets, loan portfolio, investments, properties or operations.
b. Since June 30, 1998, and other than in the ordinary course of its
business, neither Anson nor the Bank has incurred any material liability or
engaged in any material transaction or entered into any material agreement,
increased the salaries, compensation or general benefits payable to its
employees, suffered any loss, destruction or damage to any of its properties or
assets, or made a material acquisition or disposition of any assets or entered
into any material contract or lease.
2.13. Absence of Undisclosed Liabilities. The Anson Financial Statements
reflect all material liabilities of Anson and the Bank required to be reflected
therein pursuant to GAAP, and neither Anson nor the Bank has any material
liabilities or obligations, whether known or unknown, matured or unmatured,
accrued, absolute, contingent or otherwise, whether due or to become due
(including without limitation tax liabilities or unfunded liabilities under
employee benefit plans or arrangements), other than (i) those reflected in Anson
Interim Financial Statements, (ii) obligations or liabilities incurred in the
ordinary course of their business since March 31, 1999 and which are not,
individually or in the aggregate, material to Anson and the Bank considered as
one enterprise, or (iii) liabilities or obligations for customary expenses
directly related to the Anson Heritage Merger and the termination of, if
appropriate and agreed to by Uwharrie and Anson, the Anson Pension Plan (as
defined below).
2.14. Compliance with Existing Obligations. Anson and the Bank each has
performed in all material respects all obligations required to be performed by
it under, and it is not in default in any respect under, or in violation in any
respect of, the terms and conditions of its Articles of Incorporation or Bylaws,
and/or any contract, agreement, lease, mortgage, note, bond, indenture, license,
obligation, understanding or other undertaking (whether oral or written) to
which Anson or the Bank is bound or by which it, its business, capital stock or
any of its properties or assets may be affected where the effect of any such
nonperformance, default or violation could have a material adverse effect on
Anson and the Bank considered as one enterprise.
2.15. Litigation and Compliance with Law.
a. There are no material actions, suits, arbitrations, controversies
or other proceedings or investigations (or, to the best knowledge and belief of
management of Anson or the Bank, any facts or circumstances which reasonably
could result in such), including without limitation any such action by any
governmental or regulatory authority, which currently exist or are ongoing,
pending or, to the best knowledge and belief of management of Anson or the Bank,
threatened, contemplated or probable of assertion, against, relating to or
otherwise affecting Anson or the Bank or any of their properties or assets
which, if determined adversely, could result in liability on the part of Anson
or the Bank for, or subject it to, monetary damages, fines or penalties, an
injunction, or which could have a material adverse effect on Anson's or the
Bank's financial condition, results of operations, prospects, business, assets,
loan portfolio, investments, properties or operations or which could impair the
ability of Anson to consummate the Merger;
b. Anson and the Bank each has all licenses, permits, orders,
authorizations or approvals ("Permits") of any federal, state, local or foreign
governmental or regulatory body that are material to or necessary for the
conduct of its business or to own, lease and operate its properties; all such
Permits are in full force and effect; no violations are or have been recorded in
respect of any such Permits, the effect of which could have a material adverse
effect on Anson and the Bank considered as one enterprise; and no proceeding is
pending or, to the best knowledge of management of Anson and the Bank,
threatened or probable of assertion to suspend, cancel, revoke or limit any
Permit;
c. Neither Anson nor the Bank is subject to any supervisory
agreement, enforcement order, writ, injunction, capital directive, supervisory
directive, memorandum of understanding or other similar agreement, order,
directive, memorandum or consent of, with or issued by any regulatory or other
governmental authority (including without limitation the FDIC, the Administrator
or the FRB) relating to its financial condition, directors or officers,
operations, capital, regulatory compliance or otherwise; there are no judgments,
orders, stipulations, injunctions, decrees or awards against Anson or the Bank
which in any manner limit, restrict, regulate, enjoin or prohibit any present or
past business or practice of Anson or the Bank; and, neither Anson nor the Bank
has been advised or has any reason to believe that any regulatory or other
governmental authority or any court is contemplating, threatening or requesting
the issuance of any such agreement, order, injunction, directive, memorandum,
judgment, stipulation, decree or
award;
d. Neither Anson nor the Bank is in violation or default in any
material respect under, and each has complied in all material respects with, all
laws, statutes, ordinances, rules, regulations, orders, writs, injunctions or
decrees of any court or federal, state, municipal or other governmental or
regulatory authority having jurisdiction or authority over it or its business
operations, properties or assets (including without limitation all provisions of
North Carolina law relating to usury, the Consumer Credit Protection Act, and
all other laws and regulations applicable to extensions of credit by the Bank)
and, to the best knowledge and belief of management of Anson and the Bank, there
is no basis for any claim by any person or authority for compensation,
reimbursement or damages or otherwise for any violation of any of the foregoing.
2.16. Real Properties. Anson has Previously Disclosed to Uwharrie a
listing of all real property owned by Anson or the Bank and which are being used
or held for future use in connection with their respective businesses (the "Real
Property") and all other real estate owned by Anson or the Bank (including
without limitation all foreclosed properties owned by the Bank) (the "OREO").
Anson or the Bank, as the case may be, have good and marketable fee simple title
to all such Real Property and OREO and owns the same free and clear of all
mortgages, liens, leases, encumbrances, title defects and exceptions to title
other than (i) the lien of current taxes not yet due and payable, and (ii) such
imperfections of title and restrictions, covenants and easements (including
utility easements) which do not affect materially the value of the Real Property
or OREO and which do not and will not materially detract from, interfere with or
restrict the present or future use of the properties subject thereto or affected
thereby.
To the best of the knowledge and belief of management of Anson, the
Real Property and OREO complies in all material respects with all applicable
federal, state and local laws, regulations, ordinances or orders of any
governmental authority, including those relating to zoning, building and use
permits, and the Real Property may be used under applicable zoning ordinances
for commercial banking facilities as a matter of right rather than as a
conditional or nonconforming use.
All improvements and fixtures included in or on the Real Property are
in good condition and repair, ordinary wear and tear excepted, and there does
not exist any condition which interferes with Anson's (or will interfere with
Uwharrie's) use or materially affects the economic value thereof.
Anson is not a party to any real property lease, whether as lessor or
lessee.
2.17. Loans, Accounts, Notes and Other Receivables.
a. All loans, accounts, notes and other receivables reflected as
assets on the Bank's books and records (A) have resulted from bona fide business
transactions in the ordinary course of the Bank's operations, (B) in all
material respects were made in accordance with the Bank's standard loan policies
and procedures, and (C) are owned by the Bank free and clear of all liens,
encumbrances, assignments, participation or repurchase agreements or other
exceptions to title or to the ownership or collection rights of any other person
or entity.
b. All records of the Bank regarding all outstanding loans,
accounts, notes and other receivables, and the OREO, are accurate in all
material respects, and, with respect to each loan which the Bank's loan
documentation indicates is secured by any real or personal property or property
rights ("Loan Collateral"), such loan is secured by valid, perfected and
enforceable liens on all such Loan Collateral having the priority described in
the Bank?s records of such loan.
c. To the best knowledge of management of the Bank, each loan
reflected as an asset on the Bank's books, and each guaranty therefor, is the
legal, valid and binding obligation of the obligor or guarantor thereon, and no
defense, offset or counterclaim has been asserted with respect to any such loan
or guaranty.
d. The Bank has Previously Disclosed to Uwharrie a listing of (A)
each loan, extension of credit or other asset of the Bank which, as of June 30,
1999, is classified by the FDIC, the Administrator or by the Bank as "Loss",
"Doubtful", "Substandard" or "Special Mention" (or otherwise by words of similar
import), or which the Bank has designated as a special asset or for special
handling or placed on any "watch list" because of concerns regarding the
ultimate collectibility or deteriorating condition of such asset or any obligor
or Loan Collateral therefor, and (B) each loan or extension of credit of Anson
which, as of June 30, 1999, was past due as to the payment of principal and/or
interest, or as to which any obligor thereon (including the borrower or any
guarantor) otherwise was in default, is the subject of a proceeding in
bankruptcy or otherwise has indicated any inability or intention not to repay
such loan or extension of credit. Each such listing is accurate and complete as
of the date indicated.
e. To the best knowledge and belief of Anson's management, each of
the Bank's loans and other extensions of credit (with the exception of those
loans and extensions of credit specified in the written listings described in
Subparagraph (d) above) is collectible in the ordinary course of the Bank's
business in an amount which is not less than the amount at which it is carried
on the Bank's books and records.
f. The Bank's reserve for possible loan losses (the "Loan Loss
Reserve") shown in the Bank's Financial Statements has been established in
conformity with GAAP, sound banking practices and all applicable requirements,
rules and policies of the FDIC and the Administrator and, in the best judgment
of the Bank's management, is reasonable in view of the size and character of the
Bank's loan portfolio, current economic conditions and other relevant factors,
and is adequate to provide for losses relating to or the risk of loss inherent
in the Bank's
loan portfolio and other real estate owned.
2.18. Securities Portfolio and Investments. All securities owned by Anson
or the Bank for its own account (whether owned of record or beneficially) are
held free and clear of all mortgages, liens, pledges, encumbrances or any other
restriction or rights of any other person or entity, whether contractual or
statutory, which would materially impair the ability of Anson or the Bank to
dispose freely of any such security and/or otherwise to realize the benefits of
ownership thereof at any time (other than pledges of securities in the ordinary
course of the Bank's business to secure public funds deposits). There are no
voting trusts or other agreements or undertakings to which Anson or the Bank is
a party with respect to the voting of any such securities. With respect to all
"repurchase agreements" to which Anson or the Bank has "purchased" securities
under agreement to resell (if any), Anson and the Bank has a valid, perfected
first lien or security interest in the government securities or other collateral
securing the repurchase agreement, and the value of the collateral securing each
such repurchase agreement equals or exceeds the amount of the debt owed to Anson
or the Bank which is secured by such collateral.
Except for fluctuations in the market values of United States Treasury
and agency or municipal securities, since March 31, 1999, there has been no
significant deterioration or material adverse change in the quality of Anson's
or the Bank's securities portfolio.
2.19. Personal Property and Other Assets. All assets of Anson and the
Bank (including without limitation all banking equipment, data processing
equipment, vehicles, and all other personal property located in or used in the
operation of each office of Anson or the Bank or otherwise used by Anson or the
Bank in the operation of its business) are owned by Anson and the Bank free and
clear of all material liens, leases, encumbrances, title defects or exceptions
to title. All of the Bank's banking equipment is in good operating condition
and repair, ordinary wear and tear excepted.
2.20. Patents and Trademarks. Anson and the Bank each owns, possesses or
has the right to use any and all patents, licenses, trademarks, trade names,
copyrights, trade secrets and proprietary and other confidential information
necessary to conduct its business as now conducted; and, neither Anson nor the
Bank has violated, and neither of them currently are in conflict with, any
patent, license, trademark, trade name, copyright or proprietary right of any
other person or entity.
2.21. Environmental Matters.
a. Anson has Previously Disclosed and provided to Uwharrie copies of
all written reports, correspondence, notices or other materials, if any, in its
possession pertaining to environmental reports, surveys, assessments, notices of
violation, notices of regulatory requirements, penalty assessments, claims,
actions or proceedings, past or pending, of the Real Property, the OREO or any
of its Loan Collateral and any improvements thereon, or to any violation of
applicable Environmental Laws (as defined below) on, affecting or otherwise
involving the Real Property, the OREO, any Loan Collateral or otherwise
involving Anson or the Bank.
b. Except in compliance with applicable Environmental Laws (as
defined below), there has been no presence, use, production, generation,
handling, transportation, treatment, storage, disposal, distribution, labeling,
reporting, testing, processing, emission, discharge, release, threatened
release, control or clean-up in a reportable or regulated quantity of any
hazardous, toxic or otherwise regulated materials, substances or wastes,
chemical substances or mixtures, pesticides, pollutants, contaminants, toxic
chemicals, oil or other petroleum products or byproducts, asbestos or materials
containing (or presumed to contain) asbestos, polychlorinated biphenyls, or
radiation ("Hazardous Substances") by any person on, from or relating to any
parcel of the Real Property (or, to the best knowledge and belief of management
of Anson, the OREO) since the date Anson or the Bank first acquired or occupied
such parcel or, to the best of the knowledge and belief of management of Anson,
at any time prior thereto.
c. Except where such violation would not have a material adverse
effect on Anson or the Bank considered as one enterprise, neither Anson nor the
Bank has violated any federal, state or local law, rule, regulation, order,
permit or other requirement relating to health, safety or the environment or
imposing liability, responsibility or standards of conduct applicable to
environmental conditions (all such laws, rules, regulations, orders and other
requirements being herein collectively referred to as "Environmental Laws"),
and, to the best knowledge and belief of management of Anson and the Bank, there
has been no violation of any Environmental Laws (defined below, including any
violation with respect to or relating to any OREO or Loan Collateral) by any
other person or entity for whose liability or obligation with respect to any
particular matter or violation Anson or the Bank is or may be responsible or
liable.
d. Neither Anson nor the Bank has received notice of any claims,
demands, causes of action, suits, proceedings, losses, damages, penalties,
liabilities, obligations, costs or expenses of any kind and nature which arise
out of, under or in connection with, or which result from or are based upon the
presence, use, production, generation, handling, transportation, treatment,
storage, disposal, distribution, labeling, reporting, testing, processing,
emission, discharge, release, threatened release, control or clean-up of any
Hazardous Substances on, from or relating to the Real Property or the OREO or,
to the best knowledge of management of the Bank, any Loan Collateral.
e. No facts, events or conditions relating to the Real Property, the
OREO, or, to the best knowledge of management of the Bank, any Loan Collateral,
or the operations of Anson or the Bank at its office location, will prevent,
hinder or limit continued compliance with Environmental Laws, or give rise to
any investigatory, remedial or corrective actions, obligations or liabilities
(whether accrued, absolute, contingent, unliquidated or otherwise) pursuant to
Environmental Laws.
For purposes of this Agreement, "Environmental Laws" shall
include, without limitation:
(i) all federal, state and local statutes, regulations,
ordinances, orders, decrees, and similar provisions having the force or effect
of law,
(ii) all contractual agreements, and
(iii) all common law,
concerning public health and safety, worker health and safety, and pollution or
protection of the environment, including without limitation all standards of
conduct and bases of obligations relating to the presence, use, production,
generation, handling, transportation, treatment, storage, disposal,
distribution, labeling, reporting, testing, processing, discharge, release,
threatened release, control or clean-up of any Hazardous Substances (including
without limitation the Comprehensive Environmental Response, Compensation and
Liability Act, the Superfund Amendment and Reauthorization Act, the Federal
Insecticide, Fungicide and Rodenticide Act, the Hazardous Materials
Transportation Act, the Resource Conservation and Recovery Act, the Clean Water
Act, the Clean Air Act, the Toxic Substances Control Act, the Oil Pollutant Act,
the Coastal Zone Management Act, any "Superfund" or "Superlien" law, the North
Carolina Oil Pollution and Hazardous Substances Control Act, the North Carolina
Water and Air Resources Act and the North Carolina Occupational Safety and
Health Act, including any amendments thereto from time to time).
2.22. Absence of Brokerage or Finders Commissions. (i) All negotiations
relative to this Agreement and the transactions described herein have been
carried on by Anson or its exclusive agent, Trident Financial Corporation
(?Trident?), directly with Uwharrie; (ii) no person or firm other than Trident
has been retained by or has acted on behalf of, pursuant to any agreement,
arrangement or understanding with, or under the authority of, Anson or its Board
of Directors, as a broker, finder or agent or has performed similar functions or
otherwise is or may be entitled to receive or claim a brokerage fee or other
commission in connection with the transactions described herein; and, (iii)
Anson has not agreed to pay any brokerage fee or other commission to any person
or entity other than Trident in connection with the transactions described
herein.
2.23. Material Contracts. Neither Anson nor the Bank is a party to or
bound by any agreement (i) which involves money or other property in an amount
or with a value in excess of $15,000, (ii) which is not to be performed in full
prior to June 30, 2000, (iii) which calls for the provision of goods or
services to Anson or the Bank and cannot be terminated without material penalty
upon written notice to the other party thereto, (iv) which is material to Anson
or the Bank and was not entered into in the ordinary course of business, (v)
which involves hedging, options or any similar trading activity, or interest
rate exchanges or swaps, (vi) which commits Anson or the Bank to extend any loan
or credit (with the exception of letters of credit, lines of credit and loan
commitments extended in the ordinary course of the Bank's business), (vii) which
involves the purchase or sale of any assets of Anson or the Bank, or the
purchase, sale, issuance, redemption or
transfer of any capital stock or other securities of Anson or the Bank, or
(viii) which was made or entered into with any director, officer or principal
shareholder of Anson or the Bank (including without limitation any employment or
consulting agreement, but not including any agreement relating to loans or other
banking services which were made in the ordinary course of the Bank's business
and on substantially the same terms and conditions as were prevailing at that
time for similar agreements with unrelated persons).
Neither Anson nor the Bank is in default in any material respect, and
there has not occurred any event which with the lapse of time or giving of
notice or both would constitute such a default, under any contract, lease,
insurance policy, commitment or arrangement to which it is a party or by which
it or its property is or may be bound or affected or under which it or its
property receives benefits, where the consequences of such default would have a
material adverse effect on the financial condition, results of operations,
prospects, business, assets, loan portfolio, investments, properties or
operations of Anson or the Bank.
2.24. Employment Matters; Employee Relations. Anson and the Bank each (i)
has paid in full to or accrued on behalf of all its directors, officers and
employees all wages, salaries, commissions, bonuses, fees and other direct
compensation for all services performed by them to the date of this Agreement
and (ii) is in material compliance with all federal, state and local laws,
statutes, rules and regulations with regard to employment and employment
practices, terms and conditions, and wages and hours and other compensation
matters; and, no person has, to the knowledge of management of Anson or the
Bank, asserted that Anson or the Bank is liable in any amount for any arrearages
in wages or employment taxes or for any penalties for failure to comply with any
of the foregoing.
There is no action, suit or proceeding by any person pending or, to
the best knowledge of management of Anson or the Bank, threatened, against Anson
or the Bank (or any of their respective employees), involving employment
discrimination, sexual harassment, wrongful discharge or similar claims.
Neither Anson nor the Bank is a party to or bound by any collective
bargaining agreement with any of its employees, any labor union or any other
collective bargaining unit or organization. There is no pending, or to the best
knowledge of management of Anson or the Bank, threatened labor dispute, work
stoppage or strike involving Anson or the Bank and any of its employees, or any
pending or threatened proceeding in which it is asserted that Anson or the Bank
has committed an unfair labor practice; and, neither Anson nor the Bank is aware
of any activity involving it or any of its employees seeking to certify a
collective bargaining unit or engaging in any other labor organization activity.
2.25. Employment Agreements; Employee Benefit Plans.
a. Neither Anson nor the Bank is a party to or bound by any
employment agreements with any of its directors, officers or employees.
b. Anson has Previously Disclosed to Uwharrie a listing of all bonus,
deferred compensation, pension, retirement, profit-sharing, thrift, savings,
employee stock ownership, stock bonus, stock purchase, restricted stock and
stock option plans; all employment and severance contracts; all medical, dental,
health, and life insurance plans; all vacation, sickness, disability and death
benefit plans; and all other employee benefit plans, contracts, or arrangements
maintained or contributed to by Anson or the Bank for the benefit of any
employees, former employees, directors, former directors or any of their
beneficiaries (collectively, the "Plans"). True and complete copies of all
Plans, including, but not limited to, any trust instruments and/or insurance
contracts, if any, forming a part thereof, and all amendments thereto,
previously have been supplied to Uwharrie. Except as Previously Disclosed to
Uwharrie, neither Anson nor the Bank maintains, sponsors, contributes to or
otherwise participates in any "Employee Benefit Plan" within the meaning of
(S) 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), any "Multiemployer Plan" within the meaning of (S) 3(37) of ERISA, or
any "Multiple Employer Welfare Arrangement" within the meaning of (S) 3(40) of
ERISA. Each Plan which is an "employee pension benefit plan" within the meaning
of (S) 3(2) of ERISA and which is intended to be qualified under (S) 401(a) of
the Internal Revenue Code of 1986, as amended (the "Code") and each amendment
thereto has received a favorable determination letter from the IRS, and neither
Anson nor the Bank is aware of any circumstances reasonably likely to result in
the revocation or denial of any such favorable determination letter. All reports
and returns with respect to the Plans (and any Plans previously maintained by
Anson or the Bank) required to be filed with any governmental department,
agency, service or other authority, including without limitation Internal
Revenue Service Form 5500 (Annual Report), have been properly and timely filed
(allowing for any permitted extensions of filing deadlines).
c. All "Employee Benefit Plans" maintained by or otherwise covering
employees or former employees of Anson or the Bank, to the extent subject to
ERISA, currently are, and at all times have been, in substantial compliance with
all material provisions and requirements of ERISA, the Code, the Consolidated
Omnibus Reconciliation Act of 1986 and regulations promulgated thereunder
("COBRA") and other applicable laws, the noncompliance of which will not have a
material impact upon the business of Anson or the Bank. There is no pending or,
to the knowledge of management of Anson and the Bank, threatened litigation
relating to any Plan or any such Plan previously maintained by Anson or the
Bank. Neither Anson nor the Bank has (i) engaged in a transaction with respect
to any Plan that could subject Anson or the Bank to a tax or penalty imposed by
either (S) 4975 of the Code or (S) 502(i) of ERISA or (ii) materially breached
any duty or failed to perform any obligation imposed upon plan fiduciaries or
plan administrators under ERISA.
d. Anson has delivered to Uwharrie a true, correct and complete copy
(including copies of all amendments thereto) of the 1990 Anson Savings Bank
noncontributory defined benefit plan (the "Anson Pension Plan"), together with
true, correct and complete copies of the current summary plan description
relating to the Anson Pension Plan, the most recent determination letter
received from the IRS regarding the Anson Pension Plan, and the most recently
filed Annual Report (Form 5500 series) and related schedules, if any, for the
Anson Pension Plan.
The Anson Pension Plan is intended to be qualified under the
provisions of (S) 401(a) of the Code, the trust under the Anson Pension Plan is
intended to be an exempt trust under (S) 501(a) of the Code, and Anson has
received a determination letter with respect to the Anson Pension Plan to said
effect, including a determination letter covering the current terms and
provisions of the Anson Pension Plan. There are no issues relating to said
qualification or exemption of the Anson Pension Plan currently pending before
the IRS, the United States Department of Labor, the Pension Benefit Guaranty
Corporation or any court. The Anson Pension Plan and the administration thereof
are in substantial compliance (and have been in substantial compliance since the
establishment of the Anson Pension Plan) with all of the applicable requirements
of ERISA, the Code and all other laws, rules and regulations applicable to the
Anson Pension Plan, the noncompliance of which of which will not have a material
impact upon the business of Anson or the Bank. Without limiting the generality
of the foregoing, all reports and returns with respect to the Anson Pension Plan
required to be filed with any governmental department, agency, service or other
authority have been properly and timely filed (allowing for any permitted
extensions of filing deadlines). There are no issues or disputes with respect to
the Anson Pension Plan or the administration thereof currently existing between
Anson, or any trustee or other fiduciary thereunder, and any governmental
agency, any current or former employee of Anson or beneficiary of any such
employee or any other person or entity. No "reportable event" within the meaning
of Section 4043(b) of ERISA has occurred at any time with respect to the Anson
Pension Plan.
e. No liability under subtitle C or D of Title IV of ERISA has been
or is expected to be incurred by Anson or the Bank with respect to the Anson
Pension Plan or with respect to any other ongoing, frozen or terminated defined
benefit pension plan currently or formerly maintained by Anson. The Anson
Pension Plan is and has been the only defined benefit pension plan maintained by
Anson or the Bank. Neither Anson nor the Bank presently contributes to a
"Multiemployer Plan" or has contributed to such a plan within the five calendar
years since June 30, 1994. All contributions required to be made under the terms
of the Plan have been timely made. Neither the Anson Pension Plan nor any other
"employee benefit pension plan" maintained by Anson or the Bank has an
"accumulated funding deficiency" (whether or not waived) within the meaning of
(S) 412 of the Code or (S) 302 of ERISA. Neither Anson nor the Bank has
provided, or is required to provide, security to any "pension plan" or to any
"Single Employer Plan pursuant to (S) 401(a)(29) of the Code. Under the Anson
Pension Plan and any other "employee benefit pension plan" maintained by Anson
or the Bank, as of the last day of the most recently ended plan year ended prior
to the date hereof, the actuarially determined present value of all "benefit
liabilities," within the meaning of (S) 4001(a)(16) of ERISA (as determined on
the basis of the actuarial assumptions contained in the plan's most recent
actuarial valuation) did not exceed the then current fair market value of the
assets of such plan, and there has been no material change in the financial
condition of any such plan since the last day of the most recent plan year.
f. There are no restrictions on the rights of Anson to amend or
terminate any Plan without incurring any liability thereunder. Neither the
execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will (except as otherwise specifically provided
herein) (A) result in any payment to any person (including without
limitation any severance compensation or payment, unemployment compensation,
"golden parachute" or "change in control" payment, or otherwise) becoming due
under any Plan or other agreement or arrangement to any director, officer,
employee or consultant, (B) increase any benefits otherwise payable under any
Plan or other agreement or arrangement, or (C) result in any acceleration of the
time of payment or vesting of any such benefit.
2.26. Insurance. Anson and the Bank have in effect a "banker's blanket
bond" and such other policies of general liability, casualty, directors and
officers liability, employee fidelity, errors and omissions and other property
and liability insurance as have been Previously Disclosed to Uwharrie (the
"Policy" or "Policies"). Each of the Policies is in full force and effect and is
valid and enforceable in accordance with its terms, and is underwritten by an
insurer of recognized financial responsibility and which is qualified to
transact business in North Carolina; and, Anson and the Bank each has taken all
requisite actions (including the giving of required notices) under each such
Policy in order to preserve all rights thereunder with respect to all matters.
Neither Anson nor the Bank is in default under the provisions of, has not
received notice of cancellation or nonrenewal of or any premium increase on, or
has any knowledge of any failure to pay any premium on or any inaccuracy in any
application for any Policy. There are no pending claims with respect to any
Policy (and neither Anson nor the Bank is aware of any facts which would form
the basis of any such claim), and neither Anson nor the Bank has any knowledge
of any state of facts or of the occurrence of any event that is reasonably
likely to form the basis for any such claim.
2.27. Insurance of Deposits. All deposits of Anson are insured by the
Savings Association Insurance Fund of the FDIC to the maximum extent permitted
by law, all deposit insurance premiums due from Anson to the FDIC have been paid
in full in a timely fashion, and, to the best of the knowledge and belief of
Anson's executive officers, no proceedings have been commenced or are
contemplated by the FDIC or otherwise to terminate such insurance.
2.28. Obstacles to Regulatory Approval. To the best of the knowledge and
belief of management of Anson and the Bank, there exists no fact or condition
(including Anson's record of compliance with the Community Reinvestment Act)
relating to Anson or the Bank that may reasonably be expected to prevent or
materially impede or delay Uwharrie or Anson from obtaining the regulatory
approvals required in order to consummate the transactions described herein,
and, if any such fact or condition becomes known to Anson, Anson shall promptly
(and in any event within three days after obtaining such knowledge) communicate
such fact or condition to the President of Uwharrie.
2.29. Disclosure. To the best of the knowledge and belief of management
of Anson and the Bank, no written statement, certificate, schedule, list or
other written information furnished by or on behalf of Anson or the Bank at any
time to Uwharrie in connection with this Agreement (including without limitation
information "Previously Disclosed" by Anson), when considered as a whole,
contains or will contain any untrue statement of a material fact or omits or
will omit to state a material fact necessary in order to make the statements
herein or therein, in light of the circumstances under which they were made, not
misleading. Each document delivered or to be delivered by Anson or the Bank to
Uwharrie is or will be a true and complete copy of such
document, unmodified except by another document delivered by Anson.
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF UWHARRIE
Except as otherwise specifically described herein or as "Previously
Disclosed" (as defined in Paragraph 11.01. below) to Anson, Uwharrie hereby
makes the following representations and warranties to Anson.
3.01. Organization; Standing; Power. Uwharrie (i) is duly organized and
incorporated, validly existing and in good standing as a corporation under the
laws of North Carolina, (ii) has all requisite corporate power and authority to
own its respective properties and conduct its respective business as now being
conducted, (iii) is duly qualified to do business and is in good standing in
each other jurisdiction in which the character of the properties owned or leased
by it therein or in which the transaction of its business makes such
qualification necessary, except where failure so to qualify would not have a
material adverse effect on Uwharrie and its subsidiaries considered as one
enterprise, and (iv) is not transacting business, or operating any properties
owned or leased by it, in violation of any provision of federal or state law or
any rule or regulation promulgated thereunder, which violation would have a
material adverse effect on Uwharrie and its subsidiaries considered as one
enterprise.
3.02. Authorization and Validity of Agreement. Subject only to approval
of this Agreement by its Board of Directors in the manner required by law (as
contemplated by Paragraph 7.01.d. below) and required approvals of regulatory
authorities (as contemplated by Paragraph 7.01.a. below), (i) Uwharrie has the
corporate power and authority to execute and deliver this Agreement and to
perform its obligations and agreements and carry out the transactions described
herein, (ii) all corporate proceedings required to be taken to authorize
Uwharrie to enter into this Agreement and to perform its obligations and
agreements and carry out the transactions described herein have been duly and
properly taken, and (iii) this Agreement constitutes the valid and binding
agreement of Uwharrie enforceable in accordance with its terms (except to the
extent enforceability may be limited by (A) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws from time to time in effect which
affect creditors' rights generally (B) by legal and equitable limitations on the
availability of injunctive relief, specific performance and other equitable
remedies, and (C) general principles of equity and applicable laws or court
decisions limiting the enforceability of indemnification provisions).
3.03. Validity of Transactions; Absence of Required Consents or Waivers.
Except where the same would not have a material adverse effect on Uwharrie and
its subsidiaries considered as one enterprise, neither the execution and
delivery of this Agreement, nor the consummation of the transactions described
herein, nor compliance by Uwharrie with any of its obligations or agreements
contained herein, will: (i) conflict with or result in a breach of the terms and
conditions of, or constitute a default or violation under any provision of,
Uwharrie's Articles of Incorporation or Bylaws, or any contract, agreement,
lease, mortgage, note, bond, indenture, license, or obligation or understanding
(oral or written) to which Uwharrie is bound or by which it,
its business, capital stock or any of its properties or assets may be affected;
(ii) result in the creation or imposition of any lien, claim, interest, charge,
restriction or encumbrance upon any of Uwharrie's properties or assets; (iii)
violate any applicable federal or state statute, law, rule or regulation, or any
order, writ, injunction or decree of any court, administrative or regulatory
agency or governmental body; (iv) result in the acceleration of any obligation
or indebtedness of Uwharrie; or, (v) interfere with or otherwise adversely
affect Uwharrie's ability to carry on its business as presently conducted.
No consents, approvals or waivers are required to be obtained from any
person or entity in connection with Uwharrie's execution and delivery of this
Agreement, or the performance of its obligations or agreements or the
consummation of the transactions described herein, except for required approvals
of governmental or regulatory authorities described in Paragraph 7.01.a. below
and of the Boards of Directors of Uwharrie and Anson Heritage as described in
Paragraph 7.01.d. below.
3.04. Obstacles to Regulatory Approval. To the best of the knowledge and
belief of the executive officers of Uwharrie, no fact or condition relating to
Uwharrie (including Uwharrie's record of compliance with the Community
Reinvestment Act) exists that may reasonably be expected to prevent or
materially impede or delay Uwharrie or Anson from obtaining the regulatory
approvals required in order to consummate the transactions described herein,
and, if any such fact or condition becomes known to the executive officers of
Uwharrie, it promptly (and in any event within three days after obtaining such
knowledge) shall communicate such fact or condition to the President of Anson.
3.05. Disclosure. To the best of the knowledge and belief of Uwharrie, no
written statement, certificate, schedule, list or other written information
furnished by or on behalf of Uwharrie at any time to Anson in connection with
this Agreement (including without limitation information "Previously Disclosed"
by Uwharrie), when considered as a whole, contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact
necessary in order to make the statements herein or therein, in light of the
circumstances under which they were made, not misleading. Each document
delivered or to be delivered by Uwharrie to Anson is or will be a true and
complete copy of such document, unmodified except by another document delivered
by Uwharrie.
3.06. No Shareholder Approval. No approval of Uwharrie's shareholders is
required to consummate the Anson Heritage Merger.
3.07 Funds Availability. Uwharrie has sufficient funds to pay the
aggregate amount necessary to convert the shares of Anson Stock to cash in order
to effectuate the Anson Heritage Merger.
3.08 Compliance with Capital Adequacy Guidelines. Uwharrie meets or
exceeds all applicable capital adequacy regulatory standards as of June 30, 1999
and as of the date hereof, and Uwharrie meets or exceeds all applicable capital
adequacy regulatory standards on a pro forma
basis reflecting the Anson Heritage Merger (including the aggregate amount
necessary to convert the shares of Anson Stock to cash) as of the date hereof
and the Anson Heritage Merger Effective Time.
ARTICLE IV. COVENANTS OF ANSON
4.01. Affirmative Covenants of Anson. Anson hereby covenants and agrees
as follows with Uwharrie.
a. Meeting of Shareholders. Anson shall cause a meeting of its
shareholders (the "Shareholder Meeting", which may be a regular annual meeting
or a specially called meeting) to be held as soon as reasonably possible (but in
no event later than December 1, 1999) for the purpose of Anson's shareholders
voting on the approval of this Agreement and the Plans of Merger included
herein. In connection with the call and conduct of and all other matters
relating to the Shareholder Meeting (including the solicitation of proxies),
Anson shall fully comply with all provisions of applicable law and regulations
(including without limitation the Securities Exchange Act of 1934 (the "Exchange
Act") and rules and regulations promulgated thereunder by the SEC) and with
Anson's Articles of Incorporation and By-laws.
b. Preparation and Distribution of Proxy Statement. Anson will
caused to be prepared a "Proxy Statement" for distribution to Anson's
shareholders in connection with Anson's solicitation of voting proxies for use
at the Shareholder Meeting. The Proxy Statement shall be in such form and shall
contain or be accompanied by such information regarding the Shareholder Meeting,
this Agreement, the parties hereto, the Merger and other transactions described
herein as is required by applicable law and regulations (including without
limitation the Exchange Act and rules and regulations promulgated thereunder)
and otherwise as shall be agreed upon by Uwharrie and Anson. Anson shall cause
the Proxy Statement to be filed with the SEC in accordance with its rules and
regulations, and Anson shall, as promptly as possible, comply with or otherwise
satisfactorily resolve any comments of the SEC thereon. Before the filing of the
Proxy Statement with the SEC and again prior to its mailing to Anson's
shareholders, Uwharrie shall have the right to review and comment on the form
and content of the Proxy Statement.
Anson will mail the Proxy Statement to its shareholders not less than
20 days prior to the scheduled date of the Shareholder Meeting.
c. Recommendation of Anson's Board of Directors. Subject to the
fulfillment by Anson's Board of Directors of its fiduciary duties to Anson's
shareholders in the event a proposal to acquire Anson is received from another
party that the Board of Directors reasonably determines to be of materially
greater value to the shareholders than the consideration payable by Uwharrie
pursuant to this Agreement, or unless Anson's Board of Directors reasonably
believes that such a recommendation would violate the directors' fiduciary
duties or obligations to Anson or to its shareholders (the "Fiduciary Release"),
then the Proxy Statement will state that Anson's Board of Directors considers
the Anson Heritage Merger to be advisable and in the best
interests of Anson and its shareholders and that the Board of Directors
recommends that Anson's shareholders vote their shares of Anson Stock at the
Shareholder Meeting in favor of ratification and approval of this Agreement and
the Plan of Anson Heritage Merger contained herein.
d. Conduct of Business Prior to Effective Time. While the parties
recognize that the operation of Anson and the Bank until the Effective Time is
the responsibility of Anson and the Bank and their respective Boards of
Directors and officers, Anson agrees that, between the date of this Agreement
and the Anson Heritage Merger Effective Time, Anson will carry on its business,
and it will cause the Bank to carry on its business, in and only in the regular
and usual course in substantially the same manner as such business heretofore
was conducted, and, to the extent consistent with such business and within its
reasonable ability to do so, Anson agrees that it will:
(i) preserve intact its present business organization, keep
available its present officers and employees, and preserve its relationships
with customers, depositors, creditors, correspondents, suppliers, and others
having business relationships with it;
(ii) maintain all its properties and equipment in customary
repair, order and condition, ordinary wear and tear excepted;
(iii) maintain its books of account and records in the usual,
regular and ordinary manner in accordance with sound business practices applied
on a consistent basis;
(iv) comply with all laws, rules and regulations applicable to
it, its properties and to the conduct of its business;
(v) continue to maintain in force insurance such as is described
in Paragraph 2.26. above; will not modify any bonds or policies of insurance in
effect as of the date hereof unless the same, as modified, provides
substantially equivalent coverage; and, will not cancel, allow to be terminated
or, to the extent available, fail to renew, any such bond or policy of insurance
unless the same is replaced with a bond or policy providing substantially
equivalent coverage; and,
(vi) promptly provide to Uwharrie such information about Anson
and the Bank and their financial condition, results of operations, prospects,
businesses, assets, loan portfolio, investments, properties or operations, as
they reasonably shall request.
e. Notice of Certain Changes or Events. Following the execution of
this Agreement and up to the Effective Time, Anson promptly will notify Uwharrie
in writing of and provide to it such information as it shall request regarding
(i) any material adverse change in its or the Bank's financial condition,
results of operations, prospects, business, assets, loan portfolio, investments,
properties or operations, or of the actual or prospective occurrence of any
condition or event which, with the lapse of time or otherwise, may or could
cause, create or result in any such material adverse change, or (ii) the actual
or prospective existence or occurrence of any condition or event which, with the
lapse of time or otherwise, has caused or may or could cause any statement,
representation or warranty of Anson herein, or any information disclosed to
Uwharrie, to be or become inaccurate, misleading or incomplete, or which has
resulted or may or could cause, create or result in the breach or violation of
any of Anson's covenants or agreements contained herein or in the failure of any
of the conditions described in Paragraphs 7.01. or 7.03. below.
f. Further Action; Instruments of Transfer, etc. Anson covenants and
agrees with Uwharrie that it (i) will use its best efforts in good faith to take
or cause to be taken all action required of it hereunder as promptly as
practicable so as to permit the consummation of the transactions described
herein at the earliest possible date, (ii) shall perform all acts and execute
and deliver to Uwharrie all documents or instruments required herein or as
otherwise shall be reasonably necessary or useful to or requested by either of
them in consummating such transactions, and, (iii) will cooperate with Uwharrie
in every way in carrying out, and will pursue diligently the expeditious
completion of, such transactions.
g. Termination and Funding of Anson Pension Plan. Prior to the Anson
Heritage Merger Effective Time, Anson, with the assistance of First Data
Corporation, which shall have been retained by Anson for such purpose, shall
take such steps as are required to initiate termination of the Anson Pension
Plan in accordance with the standard plan termination procedures under
(S) 4041(a) and (b) of ERISA and to obtain from the IRS a favorable
determination upon final termination as to the Anson Pension Plan's qualified
status under (SS) 401 and 501 of the Code.
h. Application for Bank Charter. Anson shall cooperate with Uwharrie
to provide all information and to perform all acts and execute and deliver all
documents and instruments required to apply to convert the charter of the Bank
to that of a North Carolina commercial bank pursuant to N.C. Gen. Stat.
(S) 53-17.2.
4.02. Negative Covenants of Anson. Anson hereby covenants and agrees
that, between the date hereof and the Effective Time, Anson will not do any of
the following things or take any of the following actions without the prior
written consent and authorization of the President of Uwharrie.
a. Amendments to Articles of Incorporation or Bylaws. Neither Anson
nor the Bank will amend its Articles of Incorporation or Bylaws.
b. Change in Capital Stock. Neither Anson nor the Bank will (i) make
any change in its authorized capital stock, or create any other or additional
authorized capital stock or other securities, or (ii) issue, sell, purchase,
redeem, retire, reclassify, combine or split any shares of its capital stock or
other securities (including securities convertible into capital stock), other
than the issuance of shares of Anson Stock upon the exercise of stock options
which are outstanding as of the date of this Agreement, or enter into any
agreement or understanding with respect to any such action.
c. Options, Warrants and Rights. Neither Anson nor the Bank will
grant or
issue any options, warrants, calls, puts or other rights of any kind relating to
the purchase, redemption or conversion of shares of its capital stock or any
other securities (including securities convertible into capital stock) or enter
into any agreement or understanding with respect to any such action.
d. Dividends. Anson will not declare or pay any dividends or make
any other distributions on or in respect of any shares of its capital stock or
otherwise to its shareholders.
e. Employment, Benefit or Retirement Agreements or Plans. Except as
required by law, neither Anson nor the Bank will (i) enter into or become bound
by any contract, agreement or commitment for the employment or compensation of
any officer, employee or consultant which is not immediately terminable by Anson
or the Bank without a termination penalty or similar liability on no more than
thirty (30) days notice by Anson; (ii) adopt, enter into or become bound by any
new or additional profit-sharing, bonus, incentive, change in control or "golden
parachute", stock option, stock purchase, pension, retirement, insurance
(hospitalization, life or other) or similar contract, agreement, commitment,
understanding, plan or arrangement (whether formal or informal) with respect to
or which provides for benefits for any of its current or former directors,
officers, employees or consultants; or (iii) enter into or become bound by any
contract with or commitment to any labor or trade union or association or any
collective bargaining group.
f. Increase in Compensation. Except as otherwise provided herein,
neither Anson nor the Bank will increase the compensation or benefits of, or pay
any bonus or other special or additional compensation to, any of its directors,
officers, employees or consultants. Notwithstanding anything contained herein to
the contrary, this Paragraph 4.02.f. shall not prohibit annual merit increases
in the salaries of its employees which are generally awarded in November of each
year or other payments made to employees in connection with existing
compensation or benefit plans so long as such increases or payments are effected
at such times and in such manner and amounts as shall be consistent with Anson's
past compensation policies and practices and, in the case of payments made
pursuant to compensation or benefit plans, consistent with the terms of those
plans. Additionally, on the first payroll date of Uwharrie following the Closing
Date, each employee of the Bank, except Eugene W. Ward, shall receive an
additional five percent (5%) salary increase plus an additional salary increase
of $60.00 per month and Uwharrie will allow Anson to pay its employees (except
Eugene W. Ward and W. LeGrand Bennett, Jr.) the annual bonus, in an amount
consistent with prior years, in December 1999 that the Bank will accrue on its
books from June 30, 1999 to December 31, 1999.
g. Accounting Practices. Neither Anson nor the Bank will make any
changes in its accounting methods, practices or procedures or in depreciation or
amortization policies, schedules or rates heretofore applied (except as required
by GAAP or governmental regulations).
h. Acquisitions; Additional Branch Offices. Neither Anson nor the
Bank will directly or indirectly (i) acquire or merge with, or acquire any
branch or all or any significant part of the assets of, any other person or
entity, (ii) open any new branch office, or (iii) enter into or
become bound by any contract, agreement, commitment or letter of intent relating
to, or otherwise take or agree to take any action in furtherance of, any such
transaction or the opening of a new branch office.
i. Changes in Business Practices. Except as may be required by the
FDIC, the Administrator, any other governmental or other regulatory agency, or
as shall be required by applicable law, regulation or this Agreement, neither
Anson nor the Bank will (i) change in any material respect the nature of its
business or the manner in which it conducts its business, (ii) discontinue any
material portion or line of its business, or (iii) change in any material
respect its lending, investment, asset-liability management or other material
banking or business policies (except to the extent required by Paragraph 4.01.d.
above).
j. Exclusive Merger Agreement. Neither Anson nor the Bank will,
directly or indirectly, through any person (i) encourage, solicit or attempt to
initiate or procure discussions, negotiations or offers with or from any person
or entity (other than Uwharrie) relating to a merger or other acquisition of
Anson or the Bank, or the purchase or acquisition of any Anson Stock or Bank
Stock or all or any significant part of Anson's or the Bank's assets; or provide
assistance to any person in connection with any such offer; (ii) subject to the
Fiduciary Release, disclose to any such person or entity any information not
customarily disclosed to the public concerning Anson or the Bank or their
business, or afford to any other person or entity access to its properties,
facilities, books or records; (iii) sell or transfer all or any significant part
of Anson's or the Bank's assets to any other person or entity, or (iv) subject
to the Fiduciary Release, enter into or become bound by any contract, agreement,
commitment or letter of intent relating to, or otherwise take or agree to take
any action in furtherance of, any such transaction.
k. Acquisition or Disposition of Assets. Neither Anson nor the Bank
will without the express permission of Uwharrie:
(i) sell or lease (as lessor), or enter into or become bound by
any contract, agreement, option or commitment relating to the sale, lease (as
lessor) or other disposition of any real estate; or sell or lease (as lessor),
or enter into or become bound by any contract, agreement, option or commitment
relating to the sale, lease (as lessor) or other disposition of any equipment or
any other fixed or capital asset (other than real estate) having a value on
Anson's or the Bank's books or a fair market value, whichever is greater, of
more than $5,000 for any individual item or asset, or more than $20,000 in the
aggregate for all such items or assets;
(ii) purchase or lease (as lessee), or enter into or become
bound by any contract, agreement, option or commitment relating to the purchase,
lease (as lessee) or other acquisition of any real property; or purchase or
lease (as lessee), or enter into or become bound by any contract, agreement,
option or commitment relating to the purchase, lease (as lessee) or other
acquisition of any equipment or any other fixed assets (other than real estate)
having a purchase price, or involving aggregate lease payments, in excess of
$5,000 for any individual item or asset, or more than $20,000 in the aggregate
for all such items or assets;
(iii) enter into any purchase commitment for supplies or
services which calls for prices of goods or fees for services materially higher
than current market prices or fees or which obligates Anson or the Bank for a
period longer than 12 months;
(iv) sell, purchase or repurchase, or enter into or become bound
by any contract, agreement, option or commitment to sell, purchase or
repurchase, any loan or other receivable or any participation in any loan or
other receivable; or
(v) sell or dispose of, or enter into or become bound by any
contract, agreement, option or commitment relating to the sale or other
disposition of, any other asset of Anson or the Bank (whether tangible or
intangible, and including without limitation any trade name, copyright, service
mark or intellectual property right or license); or assign its right to or
otherwise give any other person its permission or consent to use or do business
under Anson's or the Bank's corporate name or any name similar thereto; or
release, transfer or waive any license or right granted to it by any other
person to use any trademark, trade name, copyright or intellectual property
right.
l. Debt; Liabilities. Except in the ordinary course of its business
consistent with its past practices (including routine borrowings for liquidity
purposes from the Federal Home Loan Bank of Atlanta), neither Anson nor the Bank
will (i) enter into or become bound by any promissory note, loan agreement or
other agreement or arrangement pertaining to its borrowing of money, (ii)
assume, guarantee, endorse or otherwise become responsible or liable for any
obligation of any other person or entity, or (iii) incur any other liability or
obligation (absolute or contingent).
m. Liens; Encumbrances. Neither Anson nor the Bank will mortgage,
pledge or subject any of its assets to, or permit any of its assets to become or
(except as Previously Disclosed) remain subject to, any lien or any other
encumbrance (other than in the ordinary course of business consistent with its
past practices in connection with securing of public funds deposits, repurchase
agreements or other similar operating matters).
n. Waiver of Rights. Neither Anson nor the Bank will waive, release
or compromise any material rights in its favor (except in the ordinary course of
business) except in good faith for fair value in money or money's worth, nor
waive, release or compromise any rights against or with respect to any of its
officers, directors or shareholders or members of families of officers,
directors or shareholders.
o. Other Contracts. Neither Anson nor the Bank will enter into or
become bound by any contracts, agreements, commitments or understandings (other
than those described elsewhere in this Paragraph 4.02.) (i) for or with respect
to any charitable contributions; (ii) with any governmental or regulatory agency
or authority; (iii) pursuant to which Anson or the Bank would assume, guarantee,
endorse or otherwise become liable for the debt, liability or obligation of any
other person; (iv) which is entered into other than in the ordinary course of
its business; or (v) which, in the case of any one contract, agreement,
commitment or understanding and whether or not in the ordinary course of its
business, would obligate or commit Anson or the Bank to make expenditures of
more than $10,000 (other than contracts, agreements, commitments or
understandings entered into in the ordinary course of Anson's lending
operations).
ARTICLE V. COVENANTS OF UWHARRIE
Uwharrie hereby covenants and agrees as follows with Anson.
5.01. Board of Directors. Subject to their agreement to serve as such,
each of the members of the Bank's Board of Directors at the Anson Heritage
Merger Effective Time shall continue to serve as a member of the Board of
Directors of the Bank. Each such director's service as a director will be at
Uwharrie's pleasure and will be subject to Uwharrie's normal policies and
procedures regarding the appointment and service of directors of its subsidiary,
Bank of Stanly, including directors fees. Notwithstanding the foregoing,
Uwharrie agrees that each of the members of the Bank's Board of Directors shall
continue to serve in such capacity for no less than one year from the Closing
Date if each such member so desires to continue his service as a member of the
Board of Directors of the Bank.
5.02 Dividends. Uwharrie shall not declare, set aside, or pay dividends
on any shares of any class of capital stock or make any other distribution of
assets to the holders of any shares of any class of capital stock if the payment
of such dividends might cause Uwharrie to be unable to meet its obligations
under this Agreement.
5.03 Inconsistent Agreements. Uwharrie shall not enter into any
agreement, understanding, or commitment, written or oral, with any other party
which is inconsistent in any material respect with the obligations of Uwharrie
arising under this Agreement or which would
prevent Uwharrie from completing the transactions contemplated by this
Agreement; provided, however, nothing in this Agreement shall preclude Uwharrie
from negotiating and concluding transactions with respect to a merger or other
form of business combination with any other corporation or entity, so long as
such transaction or transactions would not prevent, obstruct or delay completing
the transactions contemplated by this Agreement.
5.04 Reimbursement for Certain Expenses. Uwharrie agrees to reimburse
Anson for all costs and expenses associated with the employment of W. LeGrand
Bennett, Jr. should the transactions contemplated hereby not be consummated.
ARTICLE VI. MUTUAL AGREEMENTS
6.01. Regulatory Approvals. Promptly following the date of this
Agreement, Uwharrie and Anson each shall use their respective best efforts in
good faith to (i) prepare and file, or cause to be prepared and filed, all
applications for regulatory approvals and actions as may be required of them,
respectively, by applicable law and regulations with respect to the transactions
described herein (including applications to the FDIC, the FRB and the
Administrator, and to any other applicable federal or state banking or other
regulatory authority), and (ii) obtain all necessary regulatory approvals
required for consummation of the transactions described herein.
Anson shall cooperate with Uwharrie in the preparation and filing of an
application to the North Carolina State Banking Commission for the purpose of
converting the Bank into a North Carolina-chartered commercial bank. The
approval of the conversion of the Bank into a North Carolina-chartered
commercial bank shall not be, notwithstanding any other provision herein, a
prior condition for consummation of the transactions contemplated herein.
6.02. Information for Preparation of Applications and Proxy Statement.
Uwharrie and Anson each shall cooperate with the other in the preparation of all
applications to regulatory authorities and the Proxy Statement. Uwharrie and
Anson each shall respond promptly to requests for and furnish, and shall use its
best efforts to cause its directors, officers, accountants and affiliates to
respond promptly to requests for and furnish, all documents, information,
financial statements or other material that may be reasonably requested by the
other party or its legal counsel for inclusion in or to complete any such
application or the Proxy Statement. Before the filing thereof with any
regulatory authority, Uwharrie and Anson each shall have the right to review and
comment on the form and content of any regulatory application to be filed by the
other party in connection with the Anson Heritage Merger and the Uwharrie
Merger. Should the appearance of any of the officers, directors, employees or
counsel of either Uwharrie or Anson be requested by the other or by any
governmental agency at any hearing in connection with any such application, such
party shall promptly use its best efforts to arrange for such appearance.
Uwharrie and Anson each hereby covenants with the other that none of
the information provided by it for inclusion in any regulatory application or
the Proxy Statement will, at the time such information is furnished, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements contained
therein, in light of the circumstances under which they were made, not false or
misleading. At all times after Uwharrie or Anson shall furnish any such
information to the other and up to the Effective Time, the party furnishing such
information shall promptly notify the other if it comes to such party's
attention that, due to any changes in circumstances or otherwise, any such
regulatory application or the Proxy Statement contains an untrue statement of a
material fact or omits any material fact required to be stated therein or
necessary in order to make the statements contained therein, in light of the
circumstances under which they were made, not false or misleading.
6.03. Access. Following the date of this Agreement and to and including
the Anson Heritage Merger Effective Time, Anson shall provide Uwharrie and its
employees, accountants, counsel and other representatives, access to all its
books, records, files and other information (whether maintained electronically
or otherwise), to all its properties and facilities, and to all its employees,
accountants, counsel and consultants, for purposes of the conduct of such
reasonable investigation and review as Uwharrie shall, in its sole discretion,
consider to be necessary or appropriate; provided, however, Uwharrie shall
attempt to conduct any such review in such a manner as will not interfere
unreasonably with Anson's normal operations, or with Anson's relationship with
its customers or employees.
6.04. Costs. Subject to the provisions of Paragraph 8.03. below, and
whether or not this Agreement shall be terminated or the Anson Heritage Merger
shall be consummated, Anson and Uwharrie each shall pay its own legal,
accounting and financial advisory fees and all its other costs and expenses
incurred or to be incurred in connection with the execution and performance of
its obligations under this Agreement or otherwise in connection with this
Agreement and the transactions described herein (including without limitation
all accounting fees, legal fees, filing fees, printing and mailing costs, travel
expenses, and, in the case of Anson, all fees owed to Trident and the cost of
Anson's "Fairness Opinion" described in Paragraph 7.01.e. below, and, in the
case of Uwharrie, the cost of the "Environmental Survey" described in Paragraph
6.06. below).
6.05. Announcements. Anson and Uwharrie each agrees that no person other
than the parties to this Agreement is authorized to make any public
announcements or statements about this Agreement or any of the transactions
described herein, and that, without the prior consent of the others (which
consent shall not unreasonably be denied or delayed), no party hereto may make,
publish or circulate any public announcement, statement or disclosure as to the
terms and conditions of this Agreement or the transactions described herein,
except for such disclosures as may be required incidental to obtaining the prior
approval of any regulatory agency or official to the consummation of the
transactions described herein or as otherwise shall, in the reasonable opinion
of the disclosing party's legal counsel, be required by applicable law. In all
events, each party shall give the other party a reasonable opportunity to review
and comment on any such public announcement, statement or disclosure prior to
the time that it is made, published or circulated.
6.06. Environmental Studies. At its option Uwharrie may cause to be
conducted Phase I environmental assessments of the Real Property, the OREO or
any Loan Collateral, or any portion thereof, together with such other studies,
testing and intrusive sampling and analyses as Uwharrie shall deem necessary or
desirable (collectively, the "Environmental Survey"). Uwharrie shall attempt in
good faith to complete all such Phase I environmental assessments within sixty
(60) days following the date of this Agreement and thereafter to conduct and
complete any such additional studies, testing, sampling and analyses as promptly
as practicable. Subject to the
provisions of Paragraph 8.03. below, the costs of the Environmental Survey shall
be paid by Uwharrie. If (i) the final results of any Environmental Survey (or
any related analytical data) or other information available to Uwharrie reflect
that there likely has been any discharge, disposal, release or emission by any
person of any Hazardous Substance on, from or relating to any of the Real
Property, the OREO or Loan Collateral at any time prior to the Anson Heritage
Merger Effective Time, or that any action has been taken or not taken, or a
condition or event likely has occurred or exists, with respect to any of the
Real Property, the OREO or Loan Collateral which constitutes or would or may
constitute a violation of any Environmental Laws, and if, (ii) based on the
advice of their legal counsel or other consultants, Uwharrie believes that
Anson, the Bank or either of them (or Uwharrie as successor in interest to
Anson) could become responsible for the remediation of such discharge, disposal,
release or emission or for other corrective action with respect to any such
violation, or that Anson, the Bank or either of them could become liable for
monetary damages (including without limitation any civil or criminal penalties
or assessments) resulting therefrom (or that, in the case of any of the Loan
Collateral, Anson could incur any such liability if it acquired title to such
Loan Collateral), and if, (iii) based on the advice of their legal counsel or
other consultants, Uwharrie believes the amount of expenses or liability which
Anson, the Bank or either of them (or Uwharrie as successor in interest to
Anson) could incur or for which Anson, the Bank or either of them (or Uwharrie
as successor in interest to Anson) could become responsible or liable on account
of any and all such remediation, corrective action or monetary damages at any
time or over any period of time could (x) equal or exceed an aggregate of
$50,000 but be less than $250,000, then Uwharrie may reduce the aggregate
purchase price for the total number of issued and outstanding shares of Anson
Stock by the amount of the environmental-related expense with a corresponding
reduction in the purchase price per share to be paid to the holders of Anson
Stock or (y) if such environmental-related expense should equal or exceed
$250,000, then Uwharrie shall give Anson prompt written notice thereof (together
with all information in its possession relating thereto) and, at Uwharrie's sole
option and discretion, at any time thereafter and up to the Anson Heritage
Merger Effective Time, Uwharrie may terminate this Agreement without further
obligation or liability to Anson or its shareholders.
6.07. Employees; Severance Payments; Employee Benefits.
a. Employment Agreements. By virtue of the Anson Heritage Merger
and Uwharrie Merger, Uwharrie shall assume Anson's obligations under its
existing employment agreement with Eugene M. Ward. Uwharrie agrees that Eugene
M. Ward may fulfill the first year of his existing employment agreement after
the Closing Date as a marketing-public relations officer of the Bank, serving at
the pleasure of the Board of Directors of the Bank. It is also understood by
Uwharrie that the last two years of the employment of Eugene M. Ward under said
agreement shall be effected, in Eugene M. Ward's discretion, either by a lump
sum payment or in two equal payments over two tax years of the balance of the
compensation due and owing and that Eugene M. Ward would be relieved of any
further duties, obligations or responsibilities to the Bank and Uwharrie.
b. Employment of Other Anson Employees. With respect to employees
who are not parties to employment agreements with Anson and provided they remain
employed by
Anson at the Effective Time, Uwharrie will employ such employees who accept such
employment with Uwharrie on an "at will" basis. Employment so offered by
Uwharrie to an employee of Anson shall be in such a position and for such rate
of compensation as Uwharrie shall determine in its sole discretion; provided,
however, in no event shall such rate of compensation be less than the employee's
increased compensation determined pursuant to 4.02.f. Notwithstanding anything
contained herein to the contrary, Uwharrie shall have the right to terminate the
employment of any such employee for cause, and nothing in this Agreement shall
be deemed to constitute an employment agreement with any such person or to
obligate Uwharrie to employ any such person for any specific period of time or
in any specific position or to restrict Uwharrie's right to terminate the
employment of any such person at any time, with or without cause and for any
reason satisfactory to it.
c. Severance Compensation. With respect to any employee of Anson
(other than employees who are parties to employment agreements with Anson) who
accepts employment with Uwharrie at the Anson Heritage Merger Effective Time and
whose employment is terminated by (i) the employee at any time within the
twenty-four months following the Anson Heritage Merger because (a) such employee
was requested to work outside of Anson County or (b) employee's base
compensation was reduced or (ii) Uwharrie without cause following the Anson
Heritage Merger Effective Time but prior to twenty-four (24) months following
the Anson Heritage Merger Effective Time, Uwharrie will pay severance
compensation to such employee calculated in accordance with the Anson Savings
Bank, Inc. Severance Plan dated April 29, 1998.
d. Employee Benefits. Except as otherwise provided herein, any
employee of Anson who becomes an employee of Uwharrie at the Anson Heritage
Merger Effective Time (a "New Employee") shall become entitled to receive all
employee benefits and to participate in all benefit plans provided by Uwharrie
on the same basis (including costs) and subject to the same eligibility and
vesting requirements, and to the same conditions, restrictions and limitations,
as generally are in effect and applicable to other newly hired employees of
Uwharrie. However, each New Employee shall be given credit for his or her full
years of service with Anson for purposes of (i) entitlement to vacation and sick
leave and for qualification for medical and similar insurance plans, and, (ii)
to the extent permitted under ERISA, the Code and any regulations thereunder,
eligibility for participation and vesting in Uwharrie's Section 401(k) savings
plan and in its Employee Stock Ownership Plan (the "Uwharrie Employee Benefit
Plans"); provided, however, that no New Employee will be entitled to or be given
credit for past service with Anson for purposes of the calculation or
determination of benefits under the Uwharrie Employee Benefit Plans.
Notwithstanding anything contained herein to the contrary, if
Uwharrie shall believe in good faith, upon the advice of its legal counsel or
employee benefits consultants, that the granting of any such past service credit
would not be permissible under the terms and requirements of ERISA, the Code,
any governmental rules, regulations and policies thereunder, or any other law or
regulations applicable to the operation of any such plan or program, or
otherwise would expose any such plan or program or Uwharrie to any penalty, then
Uwharrie shall not be required to give any New Employee any such credit for past
service with Anson.
The number of days of vacation and sick leave, respectively,
which shall be available to any New Employee during 1999 as an employee of
Uwharrie shall be reduced by the number of days of vacation or sick leave used
by such New Employee during 1999 prior to the Effective Time as an employee of
Anson.
e. Employee Bonus. Each employee of the Bank, except for
Eugene M. Ward, shall be paid a bonus of two months salary on a date that is
ninety (90) days following the Closing Date provided such employee remains
employed by the Bank during such ninety (90) day period.
6.08. Confidentiality. Uwharrie and Anson each agrees that it will treat
as confidential and not disclose to any unauthorized person any documents or
other information obtained from or learned about the other during the course of
the negotiation of this Agreement and the carrying out of the events and
transactions described herein (including any information obtained during the
course of any due diligence investigation or review provided for herein or
otherwise) and which documents or other information relates in any way to the
business, operations, personnel, customers or financial condition of such other
parties. Further, Uwharrie and Anson each agrees that it will not use any such
documents or other information for any purpose except for the purposes for which
such documents and information were provided to it and in furtherance of the
transactions described herein. However, the above obligations of confidentiality
shall not prohibit the disclosure of any such document or information by any
party to this Agreement to the extent (i) such document or information is then
available generally to the public or is already known to the person or entity to
whom disclosure is proposed to be made (other than through the previous actions
of such party in violation of this Paragraph 6.08.), (ii) such document or
information was available to the disclosing party on a nonconfidential basis
prior to the same being obtained pursuant to this Agreement, (iii) disclosure is
required by subpoena or order of a court or regulatory authority of competent
jurisdiction, or by any regulatory authorities in connection with the
transactions described herein, or (iv) to the extent that, in the reasonable
opinion of legal counsel to such party, disclosure otherwise is required by law.
In the event this Agreement is terminated for any reason, then each of
the parties hereto immediately shall return to the other parties all copies of
any and all documents or other written materials or information of or relating
to such other parties which were obtained from them during the course of the
negotiation of this Agreement and the carrying out of the events and
transactions described herein (whether during the course of any due diligence
investigation or review provided for herein or otherwise) and which documents or
other information relates in any way to the business, operations, personnel,
customers or financial condition of such other parties.
The parties' obligations of confidentiality under this Paragraph 6.08.
shall supersede any previous confidentiality agreements between them and shall
survive and remain in effect following any termination of this Agreement.
6.09. Directors' and Officers' Liability Insurance. Uwharrie and Anson
agree that, to
the extent the same can be purchased at a reasonable cost, then immediately
prior to the Closing Date Anson shall purchase "tail" coverage under and in the
same amount of coverage as is provided by its then current directors' and
officers' liability insurance policy, effective as of the Anson Heritage Merger
Effective Time and effective for a period of three (3) years.
ARTICLE VII. CONDITIONS PRECEDENT TO MERGER
7.01. Conditions to all Parties' Obligations. Notwithstanding any other
provision of this Agreement to the contrary, the obligations of each of the
parties to this Agreement to consummate the transactions described herein shall
be conditioned upon the satisfaction of each of the following conditions
precedent on or prior to the Closing Date.
a. Approval by Governmental or Regulatory Authorities; No
Disadvantageous Conditions. (i) The Anson Heritage Merger and other
transactions described herein shall have been approved, to the extent required
by law, by the FRB, the Administrator, and by all other governmental or
regulatory agencies or authorities having jurisdiction over such transactions,
(ii) no governmental or regulatory agency or authority shall have withdrawn its
approval of such transactions or imposed any condition on such transactions or
conditioned its approval thereof, which condition is reasonably deemed by
Uwharrie or Anson to be materially disadvantageous or burdensome or to impact so
adversely the economic or business benefits of this Agreement to Uwharrie or to
Anson's shareholders as to render it inadvisable for them to consummate the
Anson Heritage Merger; (iii) all waiting periods required following necessary
approvals by governmental or regulatory agencies or authorities shall have
expired, and, in the case of the waiting period following approval by the FRB,
no unwithdrawn objection to the Anson Heritage Merger shall have been raised by
the U.S. Department of Justice; and (iv) all other consents, approvals and
permissions, and the satisfaction of all of the requirements prescribed by law
or regulation, necessary to the carrying out of the transactions contemplated
herein shall have been procured.
b. Adverse Proceedings, Injunction, Etc. There shall not be (i) any
order, decree or injunction of any court or agency of competent jurisdiction
which enjoins or prohibits the Anson Heritage Merger or any of the other
transactions described herein or any of the parties hereto from consummating any
such transaction, (ii) any pending or threatened investigation of the Anson
Heritage Merger or any of such other transactions by the U.S. Department of
Justice, or any actual or threatened litigation under federal antitrust laws
relating to the Anson Heritage Merger or any other such transaction; or (iii)
any pending or threatened suit, action or proceeding by any person (including
any governmental, administrative or regulatory agency) relating to the Anson
Heritage Merger or any such other transactions.
c. Proxy Materials. Anson's Proxy Statement shall have been filed
with and cleared by the SEC, and all comments of the SEC on the Proxy Statement
shall have been resolved in a satisfactory manner, all as required by and in
accordance with the Exchange Act and rules and regulations promulgated
thereunder.
d. Approval by Boards of Directors and Shareholders. The Boards of
Directors of Uwharrie and Anson shall have duly approved and adopted this
Agreement by appropriate resolutions, and the shareholders of Anson shall have
duly approved, ratified and confirmed this Agreement, all to the extent required
by and in accordance with the provisions of this Agreement, applicable law, and
applicable provisions of their respective Articles of Incorporation and Bylaws.
e. Fairness Opinion. Anson's Board of Directors shall have received
from Trident a written opinion (the "Fairness Opinion"), dated as of a date
within five days preceding the mailing of the Proxy Statement to Anson's
shareholders in connection with the Shareholder Meeting, to the effect that the
terms of the Anson Heritage Merger are fair, from a financial point of view, to
Anson and its shareholders; and, Trident shall have delivered a letter to
Anson's Board of Directors, dated as of a date within five days preceding the
Closing Date, to the effect that it remains its opinion that the terms of the
Anson Heritage Merger are fair, from a financial point of view, to Anson and its
shareholders.
f. No Termination or Abandonment. This Agreement shall not have
been terminated by any party hereto.
g. Articles of Merger. Articles of Anson Heritage Merger and
Uwharrie Merger in the form described in Paragraph 1.07. above shall have been
duly executed by the appropriate parties as provided in that Paragraph.
7.02. Additional Conditions to Anson's Obligations. Notwithstanding any
other provision of this Agreement to the contrary, Anson's separate obligation
to consummate the transactions described herein shall be conditioned upon the
satisfaction of each of the following conditions precedent on or prior to the
Closing Date.
a. Compliance with Laws. Uwharrie shall have complied in all
material respects with all federal and state laws and regulations applicable to
the transactions described herein and where the violation of or failure to
comply with any such law or regulation could or may have a material adverse
effect on the consolidated financial condition, results of operations,
prospects, businesses, assets, loan portfolio, investments, properties or
operations of Uwharrie and its consolidated subsidiaries considered as one
enterprise.
b. Uwharrie's Representations and Warranties and Performance of
Agreements; Officers' Certificate. Unless waived in writing by Anson as
provided in Paragraph 11.03. below, each of the representations and warranties
of Uwharrie contained in this Agreement shall have been true and correct as of
the date hereof and shall remain true and correct on and as of the Effective
Time with the same force and effect as though made on and as of such date,
except (i) for changes which are not, in the aggregate, material and adverse to
the consolidated financial condition, results of operations, prospects,
businesses, assets, loan portfolio, investments, properties or operations of
Uwharrie and its consolidated subsidiaries considered as one enterprise, and
(ii) as otherwise contemplated by this Agreement; and Uwharrie shall have
performed in all material
respects all its respective obligations, covenants and agreements hereunder to
be performed by it on or before the Closing Date.
Anson shall have received a certificate dated as of the Closing
Date and executed by Uwharrie's President to the foregoing effect.
c. Legal Opinion of Uwharrie Counsel. Anson shall have received
from Uwharrie's legal counsel, Anthony Gaeta, Jr., P.A., a written opinion dated
as of the Closing Date and substantially in the form of Schedule B attached
hereto or otherwise in form and substance reasonably satisfactory to Anson.
d. Other Documents and Information from Uwharrie. Uwharrie shall
have provided to Anson correct and complete copies of its Bylaws, Articles of
Incorporation and board resolutions (all certified by Uwharrie's Secretary),
together with certificates of the incumbency of its officers and such other
closing documents and information as may be reasonably requested by Anson or its
counsel.
e. Acceptance by Anson's Counsel. The form and substance of all
legal matters described herein or related to the transactions contemplated
herein shall be reasonably acceptable to Anson's legal counsel.
7.03. Additional Conditions to Uwharrie's Obligations. Notwithstanding any
other provision of this Agreement to the contrary, Uwharrie's separate
obligation to consummate the transactions described herein shall be conditioned
upon the satisfaction of each of the following conditions precedent on or prior
to the Closing Date.
a. Material Adverse Change. There shall not have occurred any
material adverse change in the financial condition, results of operations,
prospects, businesses, assets, loan portfolio, investments, properties or
operations of Anson or the Bank, and there shall not have occurred any event or
development and there shall not exist any condition or circumstance which, with
the lapse of time or otherwise, may or could cause, create or result in any such
material adverse change, excluding changes in laws or regulations or interest
rates generally affecting financial institutions or required changes in
accounting methods.
b. Compliance with Laws. Anson and the Bank shall have complied in
all material respects with all federal and state laws and regulations applicable
to the transactions described herein and where the violation of or failure to
comply with any such law or regulation could or may have a material adverse
effect on the consolidated financial condition, results of operations,
prospects, businesses, assets, loan portfolio, investments, properties or
operations of Anson.
c. Anson's Representations and Warranties and Performance of
Agreements; Officers' Certificate. Unless waived in writing by Uwharrie as
provided in Paragraph 11.03. below, each of the representations and warranties
of Anson contained in this Agreement shall have been true and correct as of the
date hereof and shall remain true and correct on and as of the Effective Time
with the same force and effect as though made on and as of such date, except (i)
for changes which are not, in the aggregate, material and adverse to the
consolidated financial condition, results of operations, prospects, businesses,
assets, loan portfolio, investments, properties or operations of Anson, and (ii)
as otherwise contemplated by this Agreement; and Anson shall have performed in
all material respects all its obligations, covenants and agreements hereunder to
be performed by it on or before the Closing Date.
Uwharrie shall have received a certificate dated as of the
Closing Date and executed by Anson's President to the foregoing effect and as to
such other matters as may be reasonably requested by Uwharrie.
d. Legal Opinion of Anson Counsel. Uwharrie shall have received
from Anson's legal counsel, Brooks, Pierce, McLendon, Humphrey & Leonard,
L.L.P., a written opinion, dated as of the Closing Date and substantially in the
form of Schedule C attached hereto or otherwise in form and substance reasonably
satisfactory to Uwharrie.
e. Other Documents and Information from Anson. Anson shall have
provided to Uwharrie correct and complete copies of Anson's Articles of
Incorporation, Bylaws and board and shareholder resolutions (all certified by
Anson's Secretary), together with certificates of the incumbency of Anson's
officers and such other closing documents and information as may be reasonably
requested by Uwharrie or its counsel.
f. Acceptance by Uwharrie's Counsel. The form and substance of all
legal matters described herein or related to the transactions contemplated
herein shall be reasonably acceptable to Uwharrie's legal counsel.
g. Certain Merger Expenses. The aggregate of amounts paid or
payable by Anson for legal fees in connection with or related to the Anson
Heritage Merger shall not exceed $40,000.
h. Pension Plan Expenses. (i) Anson and Uwharrie shall have
received from First Data Corporation, in writing, a projection (based on then
current Plan assets, Plan participants and rate assumptions) of the total amount
of additional contributions that will be required to be made to the Anson
Pension Plan in order for Plan assets to be sufficient to satisfy total
projected liabilities upon final termination of the Plan, and (ii) the aggregate
of amounts paid or reasonably projected to be payable by Anson (or by Uwharrie
as successor to Anson) after the date of this Agreement in connection with the
termination of the Anson Pension Plan (whether by way of underfunding liability,
additional Plan contributions or penalties), shall not exceed $200,000, not
including any costs associated with W. LeGrand Bennett, Jr.'s employment.
ARTICLE VIII. TERMINATION; BREACH; REMEDIES
8.01. Mutual Termination. At any time prior to the Effective Time (and
whether before or after approval hereof by the shareholders of Anson), this
Agreement may be terminated by the mutual agreement of Uwharrie and Anson. Upon
any such mutual termination, all obligations of Uwharrie and Anson hereunder
shall terminate and each party shall pay costs and expenses as provided in
Paragraph 6.04. above.
8.02. Unilateral Termination. This Agreement may be terminated by either
Uwharrie or Anson (whether before or after approval hereof by Anson's
shareholders) upon written notice to the other parties and under the
circumstances described below.
a. Termination by Uwharrie. This Agreement may be terminated by
Uwharrie by action of its Board of Directors or Executive Committee:
(i) if Anson shall have violated or failed to fully perform any of its
obligations, covenants or agreements contained in Article IV or Article VI
herein in any material respect;
(ii) if Uwharrie determines at any time that any of Anson's
representations or warranties contained in Article II or in any other
certificate or writing delivered pursuant to this Agreement shall have been
false or misleading in any material respect when made, or that there has
occurred any event or development, or that there exists any condition or
circumstance which has caused or, with the lapse of time or otherwise, may or
could cause, any such representations or warranties to become false or
misleading in any material respect;
(iii) if Anson's shareholders do not ratify and approve this Agreement
and approve the Anson Heritage Merger at the Shareholder Meeting, or if the
Shareholder Meeting is not held on or before December 1, 1999, unless such
failure to ratify and approve, or to hold the Shareholder Meeting by that date,
results from Uwharrie's failure to satisfy its obligations under Paragraph 6.02.
above to provide information for inclusion in the Proxy Statement;
(iv) under the circumstances described in Paragraph 6.06. above or
Paragraph 11.01. below; or,
(v) if any of the conditions of the obligations of Uwharrie (as set
forth in Paragraph 7.01. or 7.03. above) shall not have been satisfied or
effectively waived in writing by Uwharrie, or if the Anson Heritage Merger shall
not have become effective, on or before January 31, 2000, unless such date is
extended as evidenced by the written mutual agreement of the parties hereto.
However, before Uwharrie may terminate this Agreement for any of the
reasons
specified above in (i) or (ii) of this Paragraph 8.02.a., it shall give written
notice to Anson as provided herein stating its intent to terminate and a
description of the specific breach, default, violation or other condition giving
rise to its right to so terminate, and, such termination by Uwharrie shall not
become effective if, within thirty (30) days following the giving of such
notice, Anson shall cure such breach, default or violation or satisfy such
condition to the reasonable satisfaction of Uwharrie.
b. Termination by Anson. This Agreement may be terminated by Anson
by action of its Board of Directors:
(i) if Uwharrie shall have violated or failed to fully perform any of
its obligations, covenants or agreements contained in Article V or VI herein in
any material respect;
(ii) if Anson determines that any of Uwharrie's representations and
warranties contained in Article III herein or in any other certificate or
writing delivered pursuant to this Agreement shall have been false or misleading
in any material respect when made, or that there has occurred any event or
development or that there exists any condition or circumstance which has caused
or, with the lapse of time or otherwise, may or could cause, any such
representations or warranties to become false or misleading in any material
respect;
(iii) if its shareholders do not ratify and approve this Agreement and
approve the Anson Heritage Merger at the Shareholder Meeting, or if the
Shareholder Meeting is not held on or before December 1, 1999, unless such
failure to ratify and approve, or to hold the Shareholder Meeting by that date,
results from Anson's failure to satisfy its obligations contained in Paragraphs
4.01.a., 4.01.b. or 6.02. above; or,
(iv) if any of the conditions of the obligations of Anson (as set
forth in Paragraph 7.01. or 7.02. above) shall not have been satisfied or
effectively waived in writing by Anson, or if the Merger shall not have become
effective, on or before January 31, 2000, unless such date is extended as
evidenced by the written mutual agreement of the parties hereto.
However, before Anson may terminate this Agreement for any of the
reasons specified above in clause (i) or (ii) of this Paragraph 8.02.b., it
shall give written notice to Uwharrie as provided herein stating its intent to
terminate and a description of the specific breach, default, violation or other
condition giving rise to its right to so terminate, and, such termination by
Anson shall not become effective if, within thirty (30) days following the
giving of such notice, Uwharrie shall cure such breach, default or violation or
satisfy such condition the reasonable satisfaction of Anson.
8.03. Breach; Remedies. Except as otherwise provided below, (i) in the
event of a material breach by Anson of any of its representations or warranties
contained in Article II of this Agreement, or in the event of its failure to
perform or a violation of any of its obligations, agreements or covenants
contained in Articles IV or VI of this Agreement, then (subject to Anson's
limited right to notice of default and opportunity to cure provided in Paragraph
8.02.a. above)
Uwharrie's sole right and remedy shall be to terminate this Agreement prior to
the Anson Heritage Merger Effective Time as provided in Paragraph 8.02.a. above,
or, in the case of a failure to perform or a violation of any obligations,
agreements or covenants, to seek specific performance thereof; and (ii) in the
event of any such termination of this Agreement by Uwharrie, then Anson shall be
obligated to reimburse Uwharrie for up to (but not more than) $100,000 in
expenses described in Paragraph 6.04. which actually have been incurred by it
and Anson will be required to pay Uwharrie $200,000 as liquidated damages in
full compensation of all other harm suffered by Uwharrie as a result of such
termination.
Likewise, and except as otherwise provided below, (i) in the event of
a material breach by Uwharrie of any of its representations or warranties
contained in Article III of this Agreement, or in the event of its failure to
perform or a violation of any of its obligations, agreements or covenants
contained in Articles V or VI of this Agreement, then (subject to Uwharrie's
limited right to notice of default and opportunity to cure provided in Paragraph
8.02.b. above) Anson's sole right and remedy shall be to terminate this
Agreement prior to the Anson Heritage Merger Effective Time as provided in
Paragraph 8.02.b. above, or, in the case of a failure to perform or a violation
of any obligations, agreements or covenants, to seek specific performance
thereof; and, (ii) in the event of any such termination of this Agreement by
Anson, then Uwharrie shall be obligated to reimburse Anson for up to (but not
more than) $100,000 in expenses described in Paragraph 6.04. which actually have
been incurred by it and Uwharrie will be required to pay Anson $200,000 as
liquidated damages in full compensation of all other harm suffered by Anson as a
result of such termination.
Notwithstanding anything contained herein to the contrary, if any
party to this Agreement breaches this Agreement by willfully or intentionally
failing to perform or violating any of its obligations, agreements or covenants
contained in Articles IV, V or VI of this Agreement, such party shall be
obligated to pay all expenses of the other party(ies) described in Paragraph
6.04., together with other damages recoverable at law or in equity.
ARTICLE IX. INDEMNIFICATION
9.01. Indemnification. From and after the Anson Heritage Merger Effective
Time through the third anniversary of the Anson Heritage Merger Effective Time,
Uwharrie shall indemnify and hold harmless each present and former director,
officer and employee of Anson and the Bank determined as of the Anson Heritage
Merger Effective Time (the "Indemnified Parties") against any costs or expenses
(including reasonable attorneys' fees), judgments, fines, losses, claims,
damages or liabilities (collectively, "Costs") incurred in connection with any
claim, action, suit, proceeding or investigation, whether civil, criminal,
administrative or investigative, arising out of matters existing or occurring at
or prior to the Anson Heritage Merger Effective Time, whether asserted or
claimed prior to, at or after the Anson Heritage Merger Effective Time, to the
fullest extent to which such Indemnified Parties were entitled under North
Carolina law and Anson and the Bank's Articles of Incorporation and Bylaws as in
effect on the date hereof.
Any Indemnified Party wishing to claim indemnification under this Section
9.01., upon learning of any such claim, action, suit, proceeding or
investigation, shall promptly notify Uwharrie, but the failure to so notify
shall not relieve Uwharrie or any liability it may have to such Indemnified
Party if such failure does not materially prejudice Uwharrie. In the event of
any such claim, action, suit, proceeding or investigation (whether arising
before or after the Anson Heritage Merger Effective Time), (i) Uwharrie shall
have the right to assume the defense thereof and Uwharrie shall not be liable to
such Indemnified Parties for any legal expenses of other counsel or any other
expenses subsequently incurred by such Indemnified Parties in connection with
the defense thereof, except that if Uwharrie elects not to assume such defense
or counsel for the Indemnified Parties advises that there are issues which raise
conflicts of interest between Uwharrie and the Indemnified Parties, the
Indemnified Parties may retain counsel which is reasonably satisfactory to
Uwharrie, and Uwharrie shall pay, promptly as statements therefor are received,
the reasonable fees and expenses of such counsel for the Indemnified Parties
(which may not exceed one firm in any jurisdiction unless the use of one counsel
for such Indemnified Parties would present such counsel with a conflict of
interest), (ii) the Indemnified Parties will cooperate in the defense of any
such matter, and (iii) Uwharrie shall not be liable for any settlement effected
without its prior written consent.
In the event that Uwharrie or any of its respective 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 all or substantially all of its properties and assets to any
person, then, and in each such case, the successors and assigns of such entity
shall assume the obligations set forth in this Section 9.01., which obligations
are expressly intended to be for the irrevocable benefit of, and shall be
enforceable by, each of the Indemnified Parties and his or her heirs and
representatives.
ARTICLE X. INDIVIDUAL AGREEMENTS OF ANSON'S DIRECTORS
By their execution of this Agreement in their individual capacity, each of
Anson's directors individually makes the following agreements with Uwharrie but,
except as to the agreements contained in this Article X, shall not, for any
other purpose or in any other respect, be deemed parties to this Agreement.
10.01. Actions as a Director. As a director of Anson, unless there has
been a material change in circumstances since the date of this Agreement or for
any reason it would, in such director's reasonable opinion, violate his
fiduciary duty or obligations as a director to Anson or to its shareholders, he
will: (i) recommend to Anson's shareholders that they vote their shares in
favor of ratification and approval of the Agreement and approval of the Anson
Heritage Merger described therein; (ii) vote against any action on the part of
Anson that would be in violation of the Agreement; and (iii) vote in favor of
any action on the part of Anson that is necessary or appropriate to carry out
the intent and purposes or the Agreement.
10.02. Actions as an Individual. Individually, each director of Anson
will: (i) at the
Shareholder Meeting, vote all shares of Anson's common stock which he has the
power to vote in favor of ratification and approval of this Agreement and
approval of the Anson Heritage Merger described herein; and (ii) during a period
commencing on the effective date of this Agreement and ending one year following
the Anson Heritage Merger Effective Time (the "Restriction Period"), he will not
"Compete" (as defined below), directly or indirectly, with Anson, the Bank or
Uwharrie in the geographic area consisting of Anson County, North Carolina (the
"Relevant Market") so long as each director continues to serve as a director of
the Bank during such one-year period. Each Anson director hereby acknowledges
and agrees that the Relevant Market and Restriction Period are limited in scope
to the geographic territory and period of time reasonably necessary to protect
Uwharrie's economic interest to be acquired in connection with the Anson
Heritage Merger.
10.03. Definitions. For the purposes of Paragraph 10.02 above, the
following terms shall have the meanings set forth below:
a. Compete. The term "Compete" means: (i) soliciting or securing
deposits from any Person residing in the Relevant Market for any Financial
Institution; (ii) soliciting any Person residing in the Relevant Market to
become a borrower from any Financial Institution, or assisting (other than
through the performance of ministerial or clerical duties) any Financial
Institution in making loans to any such Person; (iii) soliciting any Person
residing in the Relevant Market to purchase an insurance policy from or through
any insurance agent or agency other than Anson, the Bank or Uwharrie; (iv)
inducing or attempting to induce any Person who is or was a Customer of Anson or
the Bank at or prior to the Anson Heritage Merger Effective Time, or who is a
Customer of Uwharrie after the Anson Heritage Merger Effective Time, to change
any depository, loan and/or other banking relationship of the Customer from
Anson or Uwharrie to another Financial Institution; (v) acting as a consultant,
officer, director (including an advisory or "local" director), independent
contractor, or employee of any Financial Institution that has its main or
principal office in the Relevant Market, or, in acting in any such capacity with
any other Financial Institution, to maintain an office or be employed at or
assigned to or to have any direct involvement in the management, supervision,
business or operation of any office of such Financial Institution located in the
Relevant Market; (vi) acting as an advisory or "local" director for any
Financial Institution with respect to a branch office located in the Relevant
Market; or (vii) communicating to any Financial Institution the names or
addresses or any financial information concerning any Person who is or was a
Customer of Anson or the Bank at or prior to the Anson Heritage Merger Effective
Time, or who is a Customer of Uwharrie after the Anson Heritage Merger Effective
Time.
b. Customer. The terms "Customer of Anson", "Customer of the Bank"
and "Customer of Uwharrie" mean any Person with whom Anson, the Bank or
Uwharrie, respectively, has a depository, loan, insurance and/or other banking
or financial service relationship.
c. Financial Institution. The term "Financial Institution" means
any federal or state chartered bank, savings bank, savings and loan association
or credit union, or any holding company for or corporation that owns or controls
any such entity, or any other Person engaged in the business of making loans of
any type or receiving deposits, other than Anson, Uwharrie or one of their
affiliated corporations.
d. Person. The term "Person" means any natural person or any
corporation, partnership, proprietorship, joint venture, trust, estate,
governmental agency or instrumentality, fiduciary, unincorporated association or
other entity.
ARTICLE XI. MISCELLANEOUS PROVISIONS
11.01. "Previously Disclosed" Information. "Previously Disclosed" shall
mean the disclosure of information in a disclosure schedule delivered by either
Anson or Uwharrie, as the case may be, not later than the date hereof and which
specifically refers to this Agreement and is arranged in paragraphs
corresponding to the Paragraphs, subparagraphs and items of this Agreement
applicable thereto.
Information disclosed in a disclosure schedule described above shall
be deemed to have been Previously Disclosed for the purpose of any given
Paragraph, subparagraph or item of this Agreement only to the extent that
information is expressly set forth in such party's disclosure schedule described
above and that, in connection with such disclosure, a specific reference is made
in the disclosure schedule to that Paragraph, subparagraph or item.
11.02. Survival of Representations, Warranties, Indemnification and Other
Agreements.
a. Representations, Warranties and Other Agreements. None of the
representations, warranties or agreements herein shall survive the effectiveness
of the Anson Heritage Merger, and no party shall have any right after the Anson
Heritage Merger Effective Time to recover damages or any other relief from any
other party to this Agreement by reason of any breach of representation or
warranty, any nonfulfillment or nonperformance of any agreement contained
herein, or otherwise; provided, however, that the parties' agreements contained
in Paragraph 6.08. above shall survive the effectiveness of the Anson Heritage
Merger.
b. Indemnification. Uwharrie's indemnification agreements and
obligations pursuant to Paragraph 9.1. above shall become effective only in the
event of and following consummation of the Anson Heritage Merger.
11.03. Waiver. Any term or condition of this Agreement may be waived
(except as to matters of regulatory approvals and approvals required by law),
either in whole or in part, at any time by the party which is, and whose
shareholders are, entitled to the benefits thereof. No waiver of any term or
condition of this Agreement by any party shall be effective unless such waiver
is in writing and signed by the waiving party, or be construed to be a waiver of
any succeeding breach of the same term or condition. No failure or delay of any
party to exercise any power, or to insist upon a strict compliance by any other
party of any obligation, and no custom or practice at variance with any terms
hereof, shall constitute a waiver of the right of any party to demand a full and
complete compliance with such terms.
11.04. Amendment. This Agreement may be amended, modified or supplemented
at any time or from time to time prior to the Anson Heritage Merger Effective
Time, and either before or after its approval by the shareholders of Anson by an
agreement in writing approved by a majority of the Boards of Directors of
Uwharrie and Anson executed in the same manner as this Agreement; provided
however, that, except with the further approval of Anson's shareholders of that
change or as otherwise provided herein, following approval of this Agreement by
the shareholders of Anson no change may be made in the formula for determining
the amount of cash to be paid for each share of Anson Stock.
11.05. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if delivered personally
or by courier, or mailed by certified mail, postage prepaid, as follows:
If to Anson or the Bank: With Copy To:
Anson Bancorp, Inc. Brooks, Pierce, McLendon, Humphrey,
211 South Greene Street & Leonard, L.L.P.
Wadesboro, North Carolina 28170 2000 Renaissance Plaza
230 N. Elm Street
Greensboro, North Carolina 27401
Attention: Eugene M. Ward, President Attention: Jean C. Brooks
If to Uwharrie: With Copy to:
Uwharrie Capital Corp Anthony Gaeta, Jr., P.A.
134 North First Street 808 Salem Woods Drive, Suite 201
Albemarle, North Carolina 28001 Raleigh, North Carolina 27615
Attention: Roger L. Dick, President Attention: Anthony Gaeta, Jr.
11.06. Further Assurance. Uwharrie and Anson each agree to furnish to the
others such further assurances with respect to the matters contemplated herein
and their respective agreements, covenants, representations and warranties
contained herein, including the opinion of legal counsel, as such other parties
may reasonably request.
11.07. Headings and Captions. Headings and captions of the sections and
paragraphs of this Agreement have been inserted for convenience of reference
only and do not constitute a part hereof.
11.08. Entire Agreement. This Agreement (including all schedules and
exhibits attached hereto and all documents incorporated herein by reference)
contains the entire agreement of the parties with respect to the transactions
described herein and supersedes any and all other oral or written agreement(s)
heretofore made, and there are no representations or inducements by or to, or
and agreements between, any of the parties hereto other than those contained
herein in writing.
11.09. Severability of Provisions. The invalidity or unenforceability of
any term, phrase, clause, paragraph, restriction, covenant, agreement or other
provision hereof shall in no way affect the validity or enforceability of any
other provision or part hereof.
11.10. Assignment. This Agreement may not be assigned by any party hereto
except with the prior written consent of the other parties hereto.
11.11. Counterparts. Any number of counterparts of this Agreement may be
signed and delivered, each of which shall be considered an original and which
together shall constitute one agreement.
11.12. Governing Law. This Agreement is made in and shall be construed
and enforced in accordance with the laws of North Carolina.
IN WITNESS WHEREOF, Uwharrie and Anson each has caused this Agreement to be
executed in its name by its duly authorized officers as of the date first above
written.
ANSON BANCORP, INC.
By: /s/ Eugene M. Ward
_________________________________
Eugene M. Ward, President
ATTEST:
/s/ Veda H. Edwards
_______________________________
Veda H. Edwards, Secretary
UWHARRIE CAPITAL CORP
/s/ Roger L. Dick
__________________________________
By: Roger L. Dick, President
ATTEST:
/s/ Tamara M. Singletary
______________________________
Tamara M. Singletary, Secretary
The undersigned directors of Anson, by their execution of this Agreement in
their individual capacities, hereby agree to the provisions of Article X hereof,
but, except as to the agreements contained in Article X, shall not, for any
other purpose or in any other respect, be deemed parties to this Agreement.
WITNESS our hands and seals this the date first above written.
/s/ Preston A. Burns
_________________________________________________(SEAL)
Preston A. Burns, Chairman
/s/ John J. Crawford
_________________________________________________(SEAL)
John J. Crawford, Director
/s/ W. Kenneth Huntley
_________________________________________________(SEAL)
W. Kenneth Huntley, Director
/s/ Emmett S. Patterson
_________________________________________________(SEAL)
Emmett S. Patterson, Director
/s/ John R. Potter
_________________________________________________(SEAL)
John R. Potter, Director
/s/ H. Patrick Taylor
_________________________________________________(SEAL)
H. Patrick Taylor, Jr., Director
/s/ Eugene M. Ward
_________________________________________________(SEAL)
Eugene M. Ward, President, Chief Executive Officer and Director
EXHIBIT A
---------
PLAN OF ANSON HERITAGE MERGER
OF
ANSON BANCORP, INC.
WITH AND INTO
ANSON HERITAGE, INC.
PLAN OF ANSON HERITAGE MERGER (the "Plan of Merger"), dated as of the ____
day of ___________, 1999 by and between Anson Bancorp, Inc., a North Carolina
corporation ("Anson"), and Anson Heritage, Inc., a North Carolina corporation
("Anson Heritage") and joined in by Uwharrie Capital Corp, a North Carolina
corporation ("Uwharrie") on the basis of the following facts:
1. The authorized capital stock of Anson consists of 20,000,000 shares of
common stock, no par value per share ("Anson Common Stock"), of which 585,124
shares are issued and outstanding and 5,000,000 shares of preferred stock, no
par value per share, of which no shares are issued and outstanding; and
2. The authorized capital stock of Anson Heritage, which is wholly-owned
by Uwharrie consists of 1,000 shares of common stock, no par value per share
(hereinafter called "Anson Heritage Common Stock"), of which 1000 shares are
issued and outstanding; and
3. Anson and Uwharrie have entered into that certain Agreement and Plan of
Reorganization and Merger dated as of July __, 1999 (the "Agreement"); and
4. The Boards of Directors of Anson and Anson Heritage (such corporations
being hereinafter sometimes called the "Constituent Corporations") deem it
advisable for the mutual benefit of the parties hereto and their respective
stockholders that Anson be merged into and with Anson Heritage upon the terms
and conditions set forth in this Plan of Merger (the "Merger"), and this Plan of
Merger has been approved by the entire Boards of Directors of Anson and Anson
Heritage:
NOW, THEREFORE, in consideration of the mutual promises and covenants in
this Plan of Merger, the parties hereby agree that Anson be merged into and with
Anson Heritage which shall survive the Merger, and that the terms and conditions
of the Merger, including the manner and basis of making distribution to the
stockholders of the Constituent Corporations in extinguishment of and in
substitution for shares of the Constituent Corporations, shall be as follows:
ARTICLE I
The Merger shall be effected in accordance with and have the effect of any
and all applicable provisions of North Carolina law. At and after the Effective
Time (as defined in Article IV of this Plan of Merger): (i) Anson shall be
merged into and with Anson Heritage; (ii) the identity, existence, corporate
organization, purposes, powers, objects, franchises, privileges, rights and
immunities of Anson Heritage shall continue in effect and be unimpaired by the
Merger; (iii) the separate corporate existence of Anson shall cease; and (iv)
Anson Heritage, as the Resulting Corporation shall succeed, without other
transfer, to all the rights and property of Anson and shall be subject to all
debts and liabilities of Anson in the same manner as if the Resulting
Corporation had itself incurred them.
All rights of creditors and all liens upon the property of each of Anson
and Anson Heritage shall be preserved unimpaired by the Merger, provided that
such liens upon property of Anson Heritage shall be limited to the property
affected thereby immediately prior to the Effective Time. From and after the
Effective Time, any action or proceeding by or against Anson may be prosecuted
to judgment, which shall bind the Resulting Corporation, or the Resulting
Corporation may be proceeded against or substituted in its place.
ARTICLE II
The location of the home office of the Resulting Corporation shall be:
134 North First Street
Albemarle, North Carolina 28001
ARTICLE III
The directors of Anson Heritage holding office at the Effective Time shall
continue as the directors of the Resulting Corporation at and after the
Effective Time, and shall hold office until their resignation or removal or
until their successors have been elected and qualified in accordance with law
and the Resulting Corporation's Charter and Bylaws.
ARTICLE IV
The Merger shall become effective (the "Effective Time") upon the filing of
Articles of Merger with the North Carolina Secretary of State.
ARTICLE V
The Charter and Bylaws of Anson Heritage, as in effect immediately prior to
the Effective Time, shall be the Charter and Bylaws of the Resulting Corporation
until altered, amended or repealed as provided by law.
ARTICLE VI
The manner and basis of making distribution to the stockholders of the
Constituent Corporations in extinguishment of and in substitution for shares of
the Constituent Corporations shall be as follows:
a. Conversion of Anson Stock. At the Effective Time, all rights of Anson's
shareholders with respect to all then outstanding shares of Anson Common Stock
shall cease to exist, and, as consideration for and to effectuate the Merger
(and except as otherwise provided below) all such outstanding shares of Anson
Common Stock (other than any shares held by shareholders who properly exercise
rights of dissent and appraisal) shall be converted, without any action on the
part of the holder of such share, Uwharrie, Anson or Anson Heritage into the
right to receive $17.50 in cash for each share of Anson Common Stock (the "Anson
Merger Consideration").
At the Effective Time, and without any action by Anson or Uwharrie or any
holder thereof, Anson's stock transfer books shall be closed as to holders of
Anson Stock immediately prior to the Effective Time and, thereafter, no transfer
of Anson Common Stock by any such holder may be made or registered; and the
holders of shares of Anson Common Stock shall cease to be, and shall have no
further rights as, stockholders of Anson other than as provided herein.
Following the Effective Time, certificates representing shares of Anson Common
Stock outstanding at the Effective Time ("Anson Certificates") shall evidence
only the right of the registered holder thereof to receive, and may be exchanged
for, (i) a check for the amount of cash equal to $17.50 per share of Anson
Common Stock, or (ii) in the case of shares of Anson Common Stock held by
shareholders who properly exercise "dissenters' rights" pursuant to North
Carolina law, cash as provided in Article 13 of the North Carolina Business
Corporation Act.
b. Exchange Procedures. (i) Prior to the Effective Time, Uwharrie shall
cause a duly appointed agent (the "Agent") to make payment of the Anson Merger
Consideration. At or prior to the Effective Time, Uwharrie shall deposit with
the Agent an amount of immediately available funds equal to the aggregate Anson
Merger Consideration to be paid hereunder. As promptly as practicable following
the Effective Time, the Agent shall mail to each former shareholder of Anson of
record immediately prior to the Effective Time written instructions and
transmittal materials (a "Transmittal Letter") for use in surrendering their
stock certificates to the Agent. Upon the proper delivery to the Agent (in
accordance with the above instructions, and accompanied by a properly completed
Transmittal Letter) by a former shareholder of Anson of his or her Anson
Certificates, the Agent shall issue a check in the name of such shareholder for
the amount of cash to which such
shareholder shall have become entitled and shall deliver the same to such
shareholder entitled thereto upon and in exchange for the surrender and delivery
to Uwharrie by said individual shareholder of his or her Anson Certificates.
(ii) On any date after six months from the Effective Time, the Agent will return
to Uwharrie, at Uwharrie's request, the balance of the funds delivered by
Uwharrie to the Agent for payment of the Anson Merger Consideration remaining at
such date, except that the Agent may retain those funds necessary to deliver
payment of the Anson Merger Consideration to shareholders of Anson who delivered
Anson Certificates prior to such date. After such date, Uwharrie rather than the
Agent shall be responsible for payment to any shareholder of Anson who has not
surrendered his or her Anson Certificates.
c. Surrender of Certificates. Subject to Paragraph e. below, no Anson
Merger Consideration for any Anson Common Stock shall be delivered to any former
shareholder of Anson unless and until such shareholder shall have properly
surrendered to the Agent the Anson Certificate(s) formerly representing his or
her shares of Anson Common Stock, together with a properly completed Transmittal
Letter in such form as shall be provided to the shareholder by Uwharrie for that
purpose. No dividend or other distribution shall be payable with respect to any
shares of Anson Common Stock subsequent to the Effective Time. Uwharrie shall
continue to hold the amount payable to each former shareholder of Anson until
such amount is claimed by that shareholder in accordance with the above
procedures or until such amount is required to be paid or delivered to a public
official pursuant to an applicable abandon property, escheat or similar law.
Neither Uwharrie nor Anson shall have any obligation to pay any interest on any
amount of cash payable to a former shareholder of Anson for any period prior to
such payment. Further, and notwithstanding any other provision of the Agreement,
neither Uwharrie nor Anson shall be liable to a former holder of Anson Common
Stock for any amount paid or property delivered in good faith to a public
official pursuant to any applicable abandoned property, escheat, or similar law.
d. Dissenters. Any shareholder of Anson who has and properly exercises
the right of dissent and appraisal with respect to the Merger in accordance with
Article 13 of the North Carolina Business Corporation Act ("Dissenters Rights")
shall be entitled to receive payment of the fair value of his or her shares of
Anson Common Stock in the manner and pursuant to the procedures provided
therein. Shares of Anson Common Stock held by persons who exercise Dissenters
Rights shall not be converted into cash as provided in Paragraph a. above.
However, if any shareholder of Anson who exercises Dissenters Rights shall fail
to perfect his or her right to receive cash as provided above, or effectively
shall waive or lose such right, then each of his or her shares of Anson Common
Stock shall be deemed to have been converted into the right to receive cash as
of the Effective Time as provided in Paragraph a. above.
e. Lost Certificates. Any shareholder of Anson whose certificate
evidencing shares of Anson Common Stock has been lost, destroyed, stolen or
otherwise is missing shall be entitled to receive cash to which he or she is
entitled in accordance with and upon compliance with conditions imposed by
Uwharrie pursuant to the provisions of N.C. Gen. Stat. Section 25-8-405 and N.C.
Gen. Stat. Section 25-8-104 (including without limitation a requirement that the
shareholder provide a lost instruments indemnity or surety bond in form,
substance and amount satisfactory to Uwharrie and the Agent).
f. Outstanding Stock. The status of the shares of the capital stock of
Uwharrie and Anson Heritage which are outstanding immediately prior to the
Effective Time shall not be affected by the Merger.
ARTICLE VII
This Plan of New Sub Merger shall be subject to all those conditions
contained in the Agreement including, but not limited to, approval of the
Agreement, this Plan of New Sub Merger and the Merger by the North Carolina and
federal banking authorities and by the requisite vote of Anson's shareholders.
ARTICLE VIII
This Plan of New Sub Merger shall terminate automatically upon the
termination of the Agreement.
ARTICLE IX
This Plan of New Sub Merger may be executed in counterparts, each of which
shall be deemed an original and all of which shall constitute one and the same
instrument.
ARTICLE X
This Plan of New Sub Merger may be amended at any time by a written
instrument signed by the parties hereto.
ARTICLE XI
This Plan of New Sub Merger shall be governed by and construed in
accordance with the laws of North Carolina, except to the extent certain matters
may be governed by federal law by reason of preemption.
IN WITNESS WHEREOF, the parties hereto have executed this Plan of Merger on
the date above written.
ANSON BANCORP, INC.
By: __________________________________________
Eugene M. Ward, President
By: __________________________________________
_______________________________, Secretary
UWHARRIE CAPITAL CORP
By: __________________________________________
Roger L. Dick, President
By: __________________________________________
_______________________________, Secretary
ANSON HERITAGE, INC.
By: __________________________________________
Roger L. Dick, President
By: __________________________________________
_______________________________, Secretary
EXHIBIT B
---------
PLAN OF UWHARRIE MERGER
OF
ANSON HERITAGE, INC.
WITH AND INTO
UWHARRIE CAPITAL CORP
A. Names of Merging Corporations. The names of the corporations proposed
to be merged are ANSON HERITAGE, INC., a North Carolina corporation ("Anson
Heritage") and UWHARRIE CAPITAL CORP, a North Carolina corporation ("Uwharrie").
B. Nature of Transaction. Subject to the provisions of this Plan of
Merger, Anson Heritage shall be merged into and with Uwharrie pursuant to NCGS
55-11-04 (the "Merger") and with the effect provided by NCGS 55-11-06.
C. Name of Surviving Corporation. Uwharrie shall be the surviving
corporation in the Merger and shall exist under the name "Uwharrie Capital
Corp."
D. Terms and Conditions of the Merger.
1. The Merger shall be effected pursuant to the terms and conditions
of this Plan of Merger and of the Agreement and Plan of Reorganization and
Merger dated as of _______, 1999, by and among Anson Bancorp, Inc. ("Anson")
NewCorp, Inc. ("NewCorp") and Uwharrie Capital Corp ("Uwharrie") (the
"Agreement"). As provided herein and in the Agreement, except insofar as the
same may be continued by law and except as continued in and merged into
Uwharrie, at the effective time of the Merger (the "Effective Time") the
separate corporate existence of Anson Heritage shall cease and the corporate
existence of Uwharrie shall continue with all of its purposes, objects, rights,
privileges, powers and franchises, all of which shall be unaffected and
unimpaired by the Merger.
2. At the Effective Time and by reason of the Merger, all of Anson
Heritage's property, assets and rights of every kind and character (including
without limitation all real, personal or mixed property, all debts due on
whatever account, all other choses in action and all and every other interest of
or belonging to or due to Anson Heritage, whether tangible or intangible) shall
be transferred to and vest in Uwharrie, and Uwharrie shall succeed to all the
rights, privileges, immunities, powers, purposes and franchises of a public or
private nature (including all trust and fiduciary properties, powers and rights)
of Anson Heritage, all without any conveyance, assignment or further act or
deed; and, Uwharrie shall become responsible for all of the liabilities, duties
and obligations of every kind, nature and description (including duties as
trustee or fiduciary) of Anson Heritage as of the Effective Time.
3. The Articles of Incorporation and Bylaws of Uwharrie in effect
immediately prior to the Effective Time shall be the Articles of Incorporation
and Bylaws of Uwharrie as the surviving corporation in the Merger and shall
continue in full force and effect following the Effective Time until amended in
accordance with applicable laws. The officers and directors of Uwharrie in
office at the Effective Time shall continue to hold such offices as the officers
and directors of Uwharrie as the surviving corporation until removed as provided
by law or until their respective successors have been elected or appointed.
E. Conversion of Shares.
1. The shares of capital stock of Uwharrie outstanding immediately
prior to the Effective Time shall constitute the only outstanding shares of the
surviving corporation at and after the Effective Time.
2. At the Effective Time, by virtue of the Merger and without any
action on the part of Uwharrie or Anson Heritage, each share of the common stock
of Anson Heritage, no par value per share, issued and outstanding at the
Effective Time shall be canceled.
F. Abandonment. This Plan of Merger may be terminated and the Merger may
be abandoned at any time prior to the Effective Time upon termination of the
Agreement as provided therein.
IN WITNESS WHEREOF, the parties hereto have executed this Plan of Merger on
the date above written.
UWHARRIE CAPITAL CORP
By: ___________________________________
Roger L. Dick, President
By: ___________________________________
________________________, Secretary
ANSON HERITAGE, INC.
By: ___________________________________
Roger L. Dick, President
By: ___________________________________
________________________, Secretary
2
3
EXHIBIT C
Form of Legal Opinion of Counsel for Uwharrie
---------------------------------------------
_____________, 1999
The Board of Directors
Anson Bancorp, Inc.
211 South Greene Street
Wadesboro, North Carolina 28170
Gentlemen:
We have acted as special counsel to Uwharrie Capital Corp ("Uwharrie"), a North
Carolina corporation, in connection with the transactions described in that
certain Agreement and Plan of Reorganization and Merger dated _________, 1999,
by and among Uwharrie, Anson Bancorp, Inc. ("Anson") and Anson Heritage, Inc.
("Anson Heritage") (the "Agreement", including the Plan of Anson Heritage Merger
referenced therein). Pursuant to and in accordance with the terms and
conditions of the Agreement, Anson is proposed to be merged into and with Anson
Heritage, a newly formed subsidiary of Uwharrie and immediately thereafter,
Anson Heritage is to be merged into Uwharrie (the "Merger") and each of the
outstanding shares of Anson's common stock will be converted into the right to
receive a cash payment from Uwharrie of $17.50 per share. This letter is
delivered in connection with the consummation and closing of the Merger and
other transactions described in the Agreement (the "Closing"). Capitalized
terms appearing herein and not otherwise defined are used as defined in the
Agreement.
As counsel to Uwharrie, we have examined originals or copies of Uwharrie's
Articles of Incorporation, By-Laws and corporate minute books, the Agreement,
the proxy statement filed by Anson with the Securities and Exchange Commission
("SEC") (the "Proxy Statement"), a Certificate of Existence of the North
Carolina Secretary of State dated __________, 199__, as to Uwharrie,
certificates and written statements of officers and agents of Uwharrie, and such
other documents and records of Uwharrie as we have deemed necessary for the
purpose of giving the opinions hereinafter expressed.
Based upon and subject to the foregoing and the qualifications set forth below,
it is our opinion that:
1. Uwharrie (i) is duly organized and incorporated and validly existing
under the laws of North Carolina, (ii) has all requisite power and authority
(corporate and other) to own its properties and conduct its businesses as now
being conducted, (iii) is duly qualified to do business and is in good standing
in each other jurisdiction in which the character of the properties owned or
leased by it therein or in which the transaction of its businesses makes such
qualification necessary, except where failure so to qualify would not have a
material adverse effect on Uwharrie, and, (iv) to our Actual Knowledge, is not
transacting business, or operating any properties owned or leased by it, in
violation of any provision of federal or state law or any rule or regulation
promulgated thereunder, which violation would have a material adverse effect on
Uwharrie.
2. (i) Uwharrie has the corporate power and authority to execute and
deliver the Agreement and to perform its obligations and agreements and carry
out the transactions described therein, (ii) all corporate proceedings required
to be taken to authorize Uwharrie to enter into the Agreement and to perform its
obligations and agreements
and carry out the transactions described therein have been duly and properly
taken, and (iii) the Agreement constitutes the valid and binding agreement of
Uwharrie enforceable in accordance with its terms.
3. Except where the same would not have a material adverse effect on
Uwharrie, neither the execution and delivery of the Agreement, nor the
consummation of the transactions described therein, nor compliance by Uwharrie
with any of its obligations or agreements contained therein, will: (i) conflict
with or result in a breach of the terms and conditions of, or constitute a
default or violation under any provision of, Uwharrie's Articles of
Incorporation or Bylaws, or, to our Actual Knowledge, any contract, agreement,
lease, mortgage, note, bond, indenture, license, or obligation or understanding
(oral or written) to which Uwharrie is bound or by which it, its business,
capital stock or any of its properties or assets may be affected; (ii) to our
Actual Knowledge, result in the creation or imposition of any lien, claim,
interest, charge, restriction or encumbrance upon any of Uwharrie's properties
or assets; (iii) violate any applicable federal or state statute, law, rule or
regulation, or any judgment order, writ, injunction or decree of any court,
administrative or regulatory agency or governmental body; (iv) to our Actual
Knowledge, result in the acceleration of any obligation or indebtedness of
Uwharrie; or, (v) to our Actual Knowledge, interfere with or otherwise adversely
affect Uwharrie's ability to carry on its business as presently conducted.
4. No consents, approvals or waivers are required to be obtained from any
person or entity in connection with Uwharrie's execution and delivery of the
Agreement, or the performance of its obligations or agreements or the
consummation of the transactions described therein, except for approvals of
Uwharrie's Board of Directors and required approvals of governmental or
regulatory authorities ("Regulatory Approvals").
5. All Regulatory Approvals required to be obtained by Uwharrie for the
consummation of the transactions contemplated by the Agreement (other than the
filing of Articles of Merger) have been obtained, all conditions imposed on
Uwharrie in connection therewith that are required to be satisfied prior to
consummation of such transactions have been satisfied or waived, and, to our
Actual Knowledge, all such regulatory approvals are in full force and effect;
and, no other consents, approvals, authorizations or other orders of any court
or any governmental agency are required to be obtained by Uwharrie for the
consummation of the transactions contemplated by the Agreement (other than the
filing of Articles of Merger with respect to the Merger);
6. (i) To our Actual Knowledge, there are no actions, suits,
arbitrations, controversies or other proceedings or investigations (or any facts
or circumstances which reasonably could result in such), including without
limitation any such action by any governmental or regulatory authority, which
currently exists or is ongoing, pending or, to our Actual Knowledge, threatened,
contemplated or probable of assertion, against, relating to or otherwise
affecting Uwharrie or any of its properties or assets which, if determined
adversely, could result in liability on the part of Uwharrie for, or subject it
to, monetary damages, fines or penalties, an injunction, or which could have a
material adverse effect on or Uwharrie's financial condition, results of
operations, prospects, businesses, assets, loan portfolio, investments,
properties or operations or on the ability of Uwharrie to consummate the Merger;
and
(ii) to our Actual Knowledge, Uwharrie is not subject to any
supervisory agreement, enforcement order, writ, injunction, capital directive,
supervisory directive, memorandum of understanding or other similar agreement,
order, directive, memorandum or consent of, with or issued by any regulatory or
other governmental authority (including without limitation the Federal Reserve
Board or the North Carolina Banking Commission) relating to its financial
condition, directors or officers, operations, capital, regulatory compliance or
otherwise; there are no judgments, orders, stipulations, injunctions, decrees or
awards against Uwharrie which in any manner limit, restrict, regulate, enjoin or
prohibit any present or past business or practice of Uwharrie; and, Uwharrie has
not been advised or has any reason to believe that any regulatory or other
governmental authority or any court is contemplating, threatening or requesting
the issuance of any such agreement, order, injunction, directive, memorandum,
judgment, stipulation, decree or award.
7. When Articles of Merger have been duly executed by Uwharrie and have
been filed with the North Carolina Secretary of State in accordance with law,
the Merger will become effective at the time of such filing or, if later, at the
time specified in such Articles of Merger.
Additionally, we have reviewed the Proxy Statement and have considered the
matters regarding Uwharrie contained therein, and, based on the foregoing (and,
in certain circumstances relying as to materiality on the opinions of officers
and representatives of Uwharrie) nothing has come to our attention which would
lead us to believe that the Proxy Statement, at the time it was distributed to
Anson's shareholders, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading (except that we make no statement
regarding any information included in the Proxy Statement regarding Anson or
regarding any of Uwharrie's financial statements or other financial, accounting
or statistical data).
In giving the opinions set forth above, we have assumed, without independent
verification, that:
a. Anson is duly organized, validly existing and in good standing as a
corporation under the laws of North Carolina and all other applicable
laws to which it is subject. Anson has the full power and authority
(corporate and otherwise) to enter into and perform its obligations
under the Agreement and to consummate the transactions described
therein. The Agreement and all other documents and instruments
executed by Anson in connection therewith have been duly and validly
executed and delivered on behalf of and are enforceable in accordance
with their terms against Anson;
b. Other than persons executing documents on behalf of Uwharrie, the
signatures of all persons signing any document or instrument delivered
in connection with the Agreement or the consummation of the
transactions described therein are genuine, and all such persons
executing such documents have been duly authorized to execute and
deliver such documents and instruments;
c. All natural persons executing any document or instrument delivered in
connection with the Agreement or the consummation of the transactions
described therein, or on whose behalf any such documents were
executed, had and continue to have legal competency to do so and to
become legally bound thereby;
d. All documents submitted to us as originals are authentic, and all
documents submitted to us as certified or photostatic copies conform
to the original documents, which are themselves authentic;
e. Anson has complied or will comply with all conditions of all required
approvals of regulatory authorities having jurisdiction over Anson,
Uwharrie and the transactions described in the Agreement.
f. All certificates of public officials have been properly given and are
accurate and complete; and
g. There has been no mutual mistake of fact, fraud, duress or undue
influence in connection with the Agreement or the transactions
described therein, and the conduct of the parties to the Agreement has
complied with any requirement of good faith, fair dealing and
conscionability. Each party to the Agreement has acted without notice
of any defense against the enforcement of any rights created thereby;
and there are no agreements or understandings, or any usage of trade
or course of dealing, among the parties that, in either case, would
define, supplement or qualify the terms of the Agreement.
In addition, all opinions and statements set forth in this letter are expressly
limited and qualified as follows:
a. The opinions expressed herein are limited to matters of North Carolina
law and the federal laws of the United States of America, and no
opinion is expressed as to any matter that is governed by the laws of
any other jurisdiction or to the effect of any such laws on the
matters dealt with herein.
b. As used in any paragraph of this letter, the phrase "Actual Knowledge"
refers to the actual, conscious awareness of information by members of
this firm who have been involved in the representations of Uwharrie in
connection with the Merger.
c. Our opinions are limited to the matters expressly stated herein, and
no opinion may be inferred or implied beyond the matters expressly
stated.
d. The enforceability of all or various provisions of the Agreement may
be limited by (A) the effect of applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws from time to time in effect
relating to or limiting the enforcement of creditors' rights
generally, (B) by legal and equitable limitations on the availability
of injunctive relief, specific performance and other equitable
remedies, (C) general principles of equity and applicable laws or
court decisions limiting the availability of specific performance,
injunctive relief and other equitable remedies (including the
enforceability of indemnification provisions, regardless of whether
such enforceability is considered in a proceeding in equity or at
law), and (D) federal and/or state bank holding company, commercial
bank, savings bank and deposit insurance laws and regulations and the
application of principles of public policy underlying such laws and
regulation
e. These opinions are delivered to you pursuant to Section 7.02.c. of the
Agreement and in connection with consummation of the transactions
described therein and are solely for your benefit. No other person
shall be entitled to rely on our opinions herein, and you are not
entitled to rely on such opinions in any other context or for any
other purpose. No copy of this letter or any portion thereof may be
delivered to any other person, or quoted, published or otherwise
disseminated, without our prior written consent.
f. Except as otherwise expressly specified herein, the opinions herein
are limited to matters in existence as of the date hereof, and we
undertake no responsibility to revise or supplement this letter or the
opinions herein to reflect any change in the law or facts.
Yours truly,
ANTHONY GAETA, JR., P.A.
Anthony Gaeta, Jr.
EXHIBIT D
---------
Form of Legal Opinion of Counsel for Anson
------------------------------------------
_____________, 1999
The Board of Directors
Uwharrie Capital Corp
134 North First Street
Albemarle, North Carolina 28001
Gentlemen:
We have acted as special counsel to Anson Bancorp, Inc. ("Anson"), a North
Carolina corporation, in connection with the transactions described in that
certain Agreement and Plan of Reorganization and Merger dated _________, 1999,
by and among Anson, Uwharrie Capital Corp ("Uwharrie") and Anson Heritage, Inc.
("Anson Heritage") (the "Agreement"), including the Plan of Merger referenced
therein). Pursuant to and in accordance with the terms and conditions of the
Agreement, Anson is proposed to be merged into and with Uwharrie (the "Merger")
and each of the outstanding shares of Anson's common stock will be converted
into the right to receive a cash payment from Uwharrie of $17.50. This letter
is delivered in connection with the consummation and closing of the Merger and
other transactions described in the Agreement (the "Closing"). Capitalized
terms appearing herein and not otherwise defined are used as defined in the
Agreement.
As counsel to Anson, we have examined originals or copies of Anson's Articles of
Incorporation, By-Laws and corporate minute books, the Agreement, the Proxy
Statement filed by Anson with the Securities and Exchange Commission (the
"SEC"), certificates and written statements of officers and agents of Anson,
Certificates of Existence of the North Carolina Secretary of State dated
___________, 1999, as to Anson and its wholly-owned subsidiary, Anson Savings
Bank, Inc. (the "Subsidiary"), and such other documents and records of Anson as
we have deemed necessary for the purpose of giving the opinions hereinafter
expressed.
Subject to the qualifications and limitations set forth herein, and except as
set forth in the Agreement or as Previously Disclosed by Anson to Uwharrie in
connection therewith, we are of the opinion that:
1. Anson and the Subsidiary each (i) is duly organized and incorporated
and validly existing (as a business corporation and savings bank, respectively)
under the laws of North Carolina; (ii) has all requisite power and authority
(corporate and other) to own, lease and operate its properties and to conduct
its respective business as now being conducted; (iii) is duly qualified to do
business and is in good standing in each other jurisdiction in which the
character of the properties owned, leased or operated by it therein or in which
the transaction of its respective businesses makes such qualification necessary,
except where failure so to qualify would not have a material adverse effect on
Anson; and, (iv) to our Actual Knowledge, is not transacting business or
operating any properties owned or leased by it in violation of any provision of
federal or state law or any rule or regulation promulgated thereunder, which
violation would have a material adverse effect on Anson.
2. Anson's authorized capital stock consists of 20,000,000 shares of
common stock, no par value per share ("Anson Stock"), of which ________________
shares are issued and outstanding and 5,000,000 shares of preferred stock, no
par value, none of which are issued and outstanding. The Subsidiary's
authorized capital stock consists of _______ shares of common stock, $_____ par
value per share ("Subsidiary Stock"), of which _______ shares are issued and
outstanding and constitutes the Subsidiary's only outstanding securities. The
outstanding shares of Subsidiary Stock are
owned of record and, to our Actual Knowledge, beneficially by Anson.
Each outstanding share of Anson Stock and Subsidiary Stock, respectively,
(i) has been duly authorized and is validly issued and outstanding, and is fully
paid and nonassessable, (ii) has not been issued in violation of the preemptive
rights of any shareholder, and (iii) has been issued pursuant to and in
compliance with the registration requirements under the Securities Act of 1933,
as amended, or an applicable exemption therefrom.
3. The Subsidiary is a wholly-owned subsidiary of Anson. Otherwise,
neither Anson nor the Subsidiary has any subsidiary (direct or indirect).
4. Neither Anson nor the Subsidiary has any outstanding (i) securities or
other obligations (including debentures or other debt instruments) which are
convertible into shares of Anson Stock or Subsidiary Stock or any other
securities of Anson or the Subsidiary, (ii) options, warrants, rights, calls or
other commitments of any nature which entitle any person to receive or acquire
any shares of Anson Stock or Subsidiary Stock or any other securities of Anson
or the Subsidiary, or (iii) plan, agreement or other arrangement pursuant to
which shares of Anson Stock or Subsidiary Stock or any other securities of Anson
or the Subsidiary, or options, warrants, rights, calls or other commitments of
any nature pertaining thereto, have been or may be issued.
5. (i) Anson has the corporate power and authority to execute and deliver
the Agreement and to perform its obligations and agreements and carry out the
transactions described therein, (ii) all corporate proceedings and approvals
required to authorize Anson to enter into the Agreement and to perform its
obligations and agreements and carry out the transactions described therein have
been duly and properly completed or obtained, and (iii) the Agreement
constitutes the valid and binding agreement of Anson enforceable in accordance
with its terms.
6. Except where the same would not have a material adverse effect on
Anson, neither the execution and delivery of the Agreement, nor the consummation
of the transactions described therein, nor compliance by Anson with any of its
obligations or agreements contained therein, will: (i) conflict with or result
in a breach of the terms and conditions of, or constitute a default or violation
under any provision of, Anson's Articles of Incorporation or Bylaws, or, to our
Actual Knowledge, any contract, agreement, lease, mortgage, note, bond,
indenture, license, or obligation or understanding (oral or written) to which
Anson or the Subsidiary is bound or by which it, its business, capital stock or
any of its properties or assets may be affected; (ii) to our Actual Knowledge,
result in the creation or imposition of any lien, claim, interest, charge,
restriction or encumbrance upon any of Anson's or the Subsidiary's properties or
assets; (iii) violate any applicable federal or state statute, law, rule or
regulation, or any judgment, order, writ, injunction or decree of any court,
administrative or regulatory agency or governmental body; (iv) to our Actual
Knowledge, result in the acceleration of any obligation or indebtedness of Anson
or the Subsidiary; or, (v) to our Actual Knowledge, interfere with or otherwise
adversely affect Anson's or the Subsidiary's ability to carry on its business as
presently conducted, or interfere with or otherwise adversely affect the ability
of Uwharrie to carry on such business after the Effective Time.
7. No consents, approvals or waivers are required to be obtained from any
person or entity in connection with Anson's execution and delivery of the
Agreement, or the performance of its obligations or agreements or the
consummation of the transactions described therein, except for approvals of
Anson's Board of Directors and shareholders and required approvals of
governmental or regulatory authorities ("Regulatory Approvals").
8. The Agreement has been duly and validly approved by Anson's Board of
Directors and shareholders to the extent and in the manner required by
applicable law, and the Agreement has been executed and delivered on Anson's
behalf.
9. All Regulatory Approvals required to be obtained by Anson for the
consummation of the transactions contemplated by the Agreement (other than the
filing of Articles of Merger) have been obtained, all conditions imposed on
Anson in connection therewith that are required to be satisfied prior to
consummation of such transactions have been satisfied or waived, and, to our
Actual Knowledge, all such regulatory approvals are in full force and effect;
and, no other consents, approvals, authorizations or other orders of any court
or any governmental agency are required to be obtained by Anson for the
consummation of the transactions contemplated by the Agreement (other than the
filing of Articles of Merger with respect to the Merger);
10. (i) To our Actual Knowledge, there are no actions, suits,
arbitrations, controversies or other proceedings or investigations (or any facts
or circumstances which reasonably could result in such), including without
limitation any such action by any governmental or regulatory authority, which
currently exists or is ongoing, pending or threatened, contemplated or probable
of assertion, against, relating to or otherwise affecting Anson or the
Subsidiary or any of their properties or assets which, if determined adversely,
could result in liability on the part of Anson or the Subsidiary for, or subject
it to, monetary damages, fines or penalties, an injunction, or which could have
a material adverse effect on Anson's or the Subsidiary's financial condition,
results of operations, prospects, businesses, assets, loan portfolio,
investments, properties or operations or on the ability of Anson to consummate
the Merger; and
(ii) to our Actual Knowledge, neither Anson nor the Subsidiary is
subject to any supervisory agreement, enforcement order, writ, injunction,
capital directive, supervisory directive, memorandum of understanding or other
similar agreement, order, directive, memorandum or consent of, with or issued by
any regulatory or other governmental authority (including without limitation the
Federal Reserve Board, the FDIC or the North Carolina Savings Administrator)
relating to its financial condition, directors or officers, operations, capital,
regulatory compliance or otherwise; there are no judgments, orders,
stipulations, injunctions, decrees or awards against Anson or the Subsidiary
which in any manner limit, restrict, regulate, enjoin or prohibit any present or
past business or practice of Anson or the Subsidiary; and, neither Anson nor the
Subsidiary has been advised or has any reason to believe that any regulatory or
other governmental authority or any court is contemplating, threatening or
requesting the issuance of any such agreement, order, injunction, directive,
memorandum, judgment, stipulation, decree or award.
11. When Articles of Merger have been duly executed by Anson Heritage and
have been filed with the North Carolina Secretary of State in accordance with
law, the Merger will become effective at the time of such filing or, if later,
at the time specified in such Articles of Merger.
Additionally, we have reviewed the Proxy Statement and have considered the
matters required to be stated therein and the statements contained therein and,
based on the foregoing (and, in certain circumstances relying as to materiality
on the opinions of officers and representatives of Anson) nothing has come to
our attention which would lead us to believe that the Proxy Statement, at the
time it was distributed to Anson's shareholders, contained any untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading (except that
we make no statement regarding any information included in the Proxy Statement
regarding Uwharrie or regarding any of Anson's financial statements or other
financial, accounting or statistical data).
In giving the opinions set forth above, we have assumed, without independent
verification, that the following is true:
a. Uwharrie is duly organized, validly existing and in good standing as a
corporation under the laws of North Carolina and all other applicable
laws to which it is subject. Uwharrie has the full power and authority
to enter into and perform its obligations under the Agreement and to
consummate the transactions described therein. The Agreement and all
other documents and instruments executed by Uwharrie in connection
therewith have been duly and validly executed and delivered on behalf
of and are enforceable in accordance with their terms against
Uwharrie;
b. Other than persons executing documents on behalf of Anson, the
signatures of all persons signing any document or instrument delivered
in connection with the Agreement or the consummation of the
transactions described therein are genuine, and all such persons
executing such documents have been duly authorized to execute and
deliver such documents and instruments;
c. All natural persons executing any document or instrument delivered in
connection with the Agreement or the consummation of the transactions
described therein (other than persons executing any document or
instrument on behalf of Anson) had and continue to have legal
competency to do so and to become legally bound thereby;
d. All documents submitted to us as originals are authentic, and all
documents submitted to us as certified or photostatic copies conform
to the original documents, which are themselves authentic;
e. Uwharrie has complied or will comply with all conditions of all
required approvals of regulatory
authorities having jurisdiction over Anson, Uwharrie and the
transactions described in the Agreement.
f. All certificates of public officials have been properly given and are
accurate and complete; and
g. There has been no mutual mistake of fact, fraud, duress or undue
influence in connection with the Agreement or the transactions
described therein, and the conduct of the parties to the Agreement has
complied with any requirement of good faith, fair dealing and
conscionability. Each party to the Agreement has acted without notice
of any defense against the enforcement of any rights created thereby;
and there are no agreements or understandings, or any usage of trade
or course of dealing, among the parties that, in either case, would
define, supplement or qualify the terms of the Agreement.
In addition, all opinions and statements set forth in this letter are expressly
limited and qualified as follows:
a. The opinions expressed herein are limited to matters of North Carolina
law and the federal laws of the United States of America, and no
opinion is expressed as to any matter that is governed by the laws of
any other jurisdiction or to the effect of any such laws on the
matters dealt with herein.
b. As used in any paragraph of this letter, the phrase "Actual Knowledge"
refers to the actual, conscious awareness of information by members of
this firm who have been involved in the representation of Anson in
connection with the Merger.
c. In giving our opinion set forth in Paragraph 1(i) above, we have
relied solely upon the Certificates of Existence.
d. Our opinions are limited to the matters expressly stated herein, and
no opinion may be inferred or implied beyond the matters expressly
stated.
e. The enforceability of all or various provisions of the Agreement may
be limited by (A) the effect of applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws from time to time in effect
relating to or limiting the enforcement of creditors' rights
generally, (B) by legal and equitable limitations on the availability
of injunctive relief, specific performance and other equitable
remedies, (C) general principles of equity and applicable laws or
court decisions limiting the availability of specific performance,
injunctive relief and other equitable remedies (including the
enforceability of indemnification provisions, regardless of whether
such enforceability is considered in a proceeding in equity or at
law), and (D) federal and/or state bank holding company, commercial
bank, savings bank and deposit insurance laws and regulations and the
application of principles of public policy underlying such laws and
regulation
f. These opinions are delivered to you pursuant to Section 7.03.d. of
the Agreement and in connection with consummation of the transactions
described therein and are solely for your benefit. No other person
shall be entitled to rely on our opinions herein, and you are not
entitled to rely on such opinions in any other context or for any
other purpose. No copy of this letter or any portion thereof may be
delivered to any other person, or quoted, published or otherwise
disseminated, without our prior written consent.
g. Except as otherwise expressly specified herein, the opinions herein
are limited to matters in existence as of the date hereof, and we
undertake no responsibility to revise or supplement this letter or the
opinions herein to reflect any change in the law or facts.
Yours truly,
BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, L. L. P.
Exhibit E
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT ("Option Agreement"), dated as of _________, 1999 by
and between Anson Bancorp, Inc., Wadesboro, North Carolina, a North Carolina
corporation ("Anson") and Uwharrie Capital Corp, Albemarle, North Carolina, a
North Carolina corporation ("Uwharrie").
BACKGROUND
- ----------
A. The Boards of Directors of Anson and Uwharrie have approved an
Agreement and Plan of Reorganization and Merger dated of even date
herewith (the "Agreement") providing for a transaction whereby all of
the outstanding shares of Anson's common stock would be acquired for
cash upon terms and conditions of the Agreement.
B. To induce Uwharrie to enter into the Agreement, Anson has agreed to
grant to Uwharrie an option to purchase 111,173 shares (the "Shares")
of the common stock of Anson ("Option").
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Capitalized terms defined in the Agreement and used in this Option
Agreement shall have the same meanings as in the Agreement.
2. Grant of Option.
(a) Subject to the terms and conditions set forth in this Option
Agreement, Anson hereby grants to Uwharrie the Option at a price
of $18.50 per share of Anson Stock payable in cash as provided in
Section 4 hereof.
(b) If at any time the outstanding shares of Anson Stock are changed
into a different number of shares or a different class by reason
of any reclassification, capitalization, split-up, combination,
exchange of shares or readjustment or if a stock dividend thereon
is declared, then the number of shares of Anson subject to the
Option and the per share consideration to be paid by Uwharrie
upon exercise of the Option shall be appropriately adjusted.
3. Exercise of Option.
(a) Uwharrie 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 or
effect upon the earliest to occur of (i) the Anson Heritage Merger
Effective Time or (ii) termination of the Agreement in accordance with
the provisions thereof prior to the occurrence of a Purchase Event
(other than a termination resulting from a breach by Anson of any
covenant contained therein) or (iii) six months after termination of
the Agreement if such termination follows the occurrence of a Purchase
Event or is due to a breach by Anson of any covenant contained
therein. 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) Anson, without having received Uwharrie's prior written consent,
shall have entered into an agreement with any person, whereby
such person would (x) merger or consolidate, or enter into any
similar transaction, with Anson, (y) purchase, lease or
otherwise acquire all or substantially all of the assets of
Anson, or (z) purchase or otherwise acquire (including by way of
merger, consolidation, share exchange or any similar
transaction) securities representing 20% or more of the voting
power of Anson.
(ii) any person shall have acquired beneficial ownership or the right
to acquire beneficial ownership of 20% or more of the
outstanding shares of Anson Stock (the term "beneficial
ownership" for purposes of this Option Agreement having the
meaning assigned thereto in Section 13(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and the
regulations promulgated thereunder);
(iii) a "change of control" (as would be required to be reported in
response to Item 5(f) of Schedule 14A or Regulation 14A
promulgated under the Exchange Act) of Anson occurs; or
(iv) any person (x) shall have made a bona fide proposal to Anson by
public announcement or written communication that is or becomes
the subject of public disclosure to acquire Anson or any Anson
Subsidiary by merger, consolidation, purchase of all or
substantially all of its assets or any other similar
transaction, (y) shall have commenced a bona fide tender or
exchange offer to purchase shares of Anson Stock such that upon
consummation of such offer such person would own or control 20%
or more of the outstanding shares of Anson, or (z) shall have
filed an application or notice with any federal or state
regulatory agency for clearance or approval to engage in any
transaction described in clause (i) or (ii) above, and
thereafter the holders of Anson Stock shall have not
approved the Agreement and the transactions contemplated
thereby at the meeting of such stockholders held for such
purpose or such meeting shall have not been held or shall have
been canceled prior to termination of the Agreement.
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 cotinuing for all purposes under this Option
Agreement 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 Uwharrie wishes to exercise this Option, it shall
send to Anson a written notice (the date of which shall be the
"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 (the
"Closing Date"); provided, that if prior notification to or
approval of any federal or state regulatory agency is required in
connection with such purchase, Uwharrie 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 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 hereof, Uwharrie shall
pay to Anson the aggregate purchase price for the Shares
purchased pursuant to the exercise of the Option in immediately
available funds by a wire transfer to a bank account designated
by Anson.
(b) At such closing, simultaneously with the delivery of cash as
provided in Section 4(a), Anson shall deliver Uwharrie a
certificate representing the number of shares of Anson Stock
purchased by Uwharrie.
5. Regulatory Filings. Anson and Uwharrie agree to file with state and
federal governmental bodies and authorities (including without
limitation the North Carolina Banking Commission and the Federal
Reserve Board) all required applications, notifications and report
forms and other documents required to be filed under any applicable
law, rule or regulation, to permit the purchase contemplated by this
Agreement (collectively, "Regulatory Filings"). Anson agrees to
cooperate fully with Uwharrie in connection with the preparation of
any Regulatory Filing. All fees, expenses and charges of any kind or
nature whatsoever incurred in connection with any Regulatory Filing
shall be borne and
paid by Anson. Anson shall indemnify and hold harmless Uwharrie, its
affiliates and its officers and directors from and against any and all
losses, claims, damages, liabilities and expenses (including, without
limitation, all out-of-pocket expenses, investigation expenses,
expenses incurred with respect to any judgment and fees and
disbursements of counsel and accountants) arising out of or based upon
any statements contained in, omissions or alleged omissions from, each
Regulatory Filing, other than statements or omissions made in reliance
on and in conformity with information provided in writing by Uwharrie
included in such Regulatory Filing.
6. Representations and Warranties.
Anson represents, warrants and covenants to Uwharrie as follows:
(a) Shares. The Shares, when delivered to Uwharrie upon exercise of
the Option, will be duly authorized, valid issued, fully paid,
nonassessable, free of preemptive rights, and free and clear of
all claims, liens, charges, encumbrances and security interests
of any nature whatsoever.
(b) Authority. Anson has full right, power and authority to execute
and deliver this Option Agreement, to grant the Option and to
sell, assign, transfer and deliver the Shares to Uwharrie upon
exercise of the Option.
(c) Binding Obligation. The execution and delivery of this Option
Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary corporate
action on the part of Anson. This Option Agreement has been duly
executed and delivered by Anson and constitutes the legal, valid
and binding obligation of Anson, enforceable against Anson in
accordance with its terms.
(d) Absence of Conflicting Agreements. The execution, delivery and
performance of this Option Agreement will not (i) conflict with,
result in a breach of, or constitute a default under, any
applicable law, judgment, ordinance, regulation or ruling of any
court or governmental authority, or under any contract or
agreement to which Anson is a party or by which Anson may be
bound, or (ii) create a lien, charge, claim or encumbrance upon
the Shares.
(e) Consents. No consent, approval, permit or authorization of, or
filing with any governmental authority or any third party is
required to consummate this Option Agreement and the transactions
contemplated hereby.
(f) Claims and Legal Actions. There is no claim, liability, legal
action, governmental investigation or other legal, administrative
or tax proceeding, nor any order, decree or judgment, in progress
or pending, or to the knowledge of Anson, threatened against
Anson which could
adversely affect the Shares, nor does Anson know or have reason
to be aware of any basis for the same.
(g) Reservation of Shares. Anson has taken all necessary corporate
action to reserve from the authorized and unissued shares of
Anson Stock to issue, upon exercise of the Option, all of the
Shares. At all times from the date hereof until such time as the
Option is no longer exercisable, Anson will reserve for issuance,
upon exercise of the Option, the number of shares of Anson Stock
equal to the number of Shares for which the Option is then
exercisable.
7. 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 Anson Stock as provided in Section 2 hereof,
it is the express intention of Anson to allow the holder to acquire
such lesser number as may be permissible, without any amendment or
modification hereof.
8. Additional Documents. Anson will, upon request of Uwharrie, promptly
execute and deliver all additional documents reasonably deemed by
Uwharrie to be necessary, appropriate or desirable to complete and
evidence any sale, assignment or transfer of the Shares pursuant to
this Option Agreement and to vest in Uwharrie good, valid and
marketable title to the Shares so transferred.
9. 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 among 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 responsible heirs,
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, provided, however, that
Uwharrie's rights and obligations under the Option Agreement and
the Option created hereunder shall be automatically transferred
to any corporation succeeding to the rights and obligations of
Uwharrie under the Agreement.
(d) Notices. All notices or other communications which are required
or permitted hereunder shall be in writing and sufficient if
delivered personally or sent by overnight express or by
registered or certified mail, postage prepaid, addressed as
provided in the Agreement. A party may change its address for
notice purposes by written notice to the other party hereto.
(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 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 North
Carolina applicable to agreements made and entirely to be
performed within such state, except to the extent that federal
laws may be applicable.
IN WITNESS WHEREOF, the parties hereto have executed this Option Agreement
duly authorized by their respective Boards of Directors.
ANSON BANCORP, INC.
By: ____________________________
Eugene M. Ward, President
ATTEST:
____________________________
Velda H. Edwards, Secretary
UWHARRIE CAPITAL CORP
By: ____________________________
Roger L. Dick, President
ATTEST:
____________________________
________________, Secretary
APPENDIX B
PROVISIONS OF NORTH CAROLINA BUSINESS CORPORATION ACT REGARDING
DISSENTERS' RIGHTS
Article 13. Dissenters' Rights
Part I. Right to Dissent and Obtain Payment for Shares.
(S)55-13-01. Definitions.
In this Article:
(1) "Corporation" means the issuer of the shares held by a dissenter
before the corporate action, or the surviving or acquiring corporation by
merger or share exchange of that issuer.
(2) "Dissenter" means a shareholder who is entitled to dissent from
corporate action under G.S. 55-13-02 and who exercises that right when and
in the manner required by G.S. 55-13-20 through 55-13-28.
(3) "Fair value," with respect to a dissenter's shares, means the
value of the shares immediately before the effectuation of the corporate
action to which the dissenter objects, excluding any appreciation or
depreciation in anticipation of the corporate action unless exclusion would
be inequitable.
(4) "Interest" means interest from the effective date of the
corporate action until the date of payment, at a rate that is fair and
equitable under all the circumstances, giving due consideration to the rate
currently paid by the corporation on its principal bank loans, if any, but
not less than the rate provided in G.S. 24-1.
(5) "Record shareholder" means the person in whose name shares are
registered in the records of a corporation or the beneficial owner of
shares to the extent of the rights granted by a nominee certificate on file
with a corporation.
(6) "Beneficial shareholder" means the person who is a beneficial
owner of shares held in a voting trust or by a nominee as the record
shareholder.
(7) "Shareholder" means the record shareholder or the beneficial
shareholder.
(S)55-13-02. Right to dissent.
(a) In addition to any rights granted under Article 9, a shareholder is
entitled to dissent from, and obtain payment of the fair value of his shares in
the event of, any of the following corporate actions:
(1) Consummation of a plan of merger to which the corporation (other
than a parent corporation in a merger under G.S. 55-11-04) is a party
unless (i) approval by the shareholders of that corporation is not required
under G.S. 55-11-03(g) or (ii) such shares are then redeemable by the
corporation at a price not greater than the cash to be received in exchange
for such shares;
(2) Consummation of a plan of share exchange to which the corporation
is a party as the corporation whose shares will be acquired, unless such
shares are then redeemable by the corporation at a price not greater than
the cash to be received in exchange for such shares;
(3) Consummation of a sale or exchange of all, or substantially all,
of the property of the corporation other than as permitted by G.S. 55-12-
01, including a sale in dissolution, but not including a sale pursuant to
court order or a sale pursuant to a plan by which all or substantially all
of the net proceeds of the sale will be distributed in cash to the
shareholders within one year after the date of sale;
(4) An amendment of the articles of incorporation that materially and
adversely affects rights in respect of a dissenter's shares because it (i)
alters or abolishes a preferential right of the shares; (ii) creates,
alters, or abolishes a right in respect of redemption, including a
provision respecting a sinking fund for the redemption or repurchase, of
the shares; (iii) alters or abolishes a preemptive right of the holder of
the shares to acquire shares or other securities; (iv) excludes or limits
the right of the shares to vote on any matter, or to cumulate votes; (v)
reduces the number of shares owned by the shareholder to a fraction of a
share if the fractional share so created is to be acquired for cash under
G.S. 55-6-04; or (vi) changes the corporation into a nonprofit corporation
or cooperative organization.
(5) Any corporate action taken pursuant to a shareholder vote to the
extent the articles of incorporation, bylaws, or a resolution of the board
of directors provides that voting or nonvoting shareholders are entitled to
dissent and obtain payment for their shares.
(b) A shareholder entitled to dissent and obtain payment for his shares
under this Article may not challenge the corporate action creating his
entitlement, including without limitation a merger solely or partly in exchange
for cash or other property, unless the action is unlawful or fraudulent with
respect to the shareholder or the corporation.
(c) Notwithstanding any other provision of this Article, there shall be no
right of dissent in favor of holders of shares of any class or series which, at
the record date fixed to determine the shareholders entitled to receive notice
of and to vote at the meeting at which the plan of merger or share exchange or
the sale or exchange of property is to be acted on, were (i) listed on a
national securities exchange or (ii) held by at least 2,000 record shareholders,
unless in either case:
(1) The articles of incorporation of the corporation issuing the
shares provide otherwise;
(2) In the case of a plan of merger or share exchange, the holders of
the class or series are required under the plan of merger or
share exchange to accept for the shares anything except:
(a) Cash;
(b) Shares, or shares and cash in lieu of fractional shares of
the surviving or acquiring corporation, or of any other
corporation which, at the record date fixed to determine the
shareholders entitled to receive notice of and vote at the
meeting at which the plan of merger or share exchange is to
be acted on, were either listed subject to notice of
issuance on a national securities exchange or held of record
by at least 2,000 record shareholders; or
(c) A combination of cash and shares as set forth in sub-
subdivisions a. and b. of this subdivision.
(S)55-13-03. Dissent by nominees and beneficial owners.
(a) A record shareholder may assert dissenters' rights as to fewer than
all the shares registered in his name only if he dissents with respect to all
shares beneficially owned by any one person and notifies the corporation in
writing of the name and address of each person on whose behalf he asserts
dissenters' rights. The rights of a partial dissenter under this subsection are
determined as if the shares as to which he dissents and his other shares were
registered in the names of different shareholders.
(b) A beneficial shareholder may assert dissenters' rights as to shares
held on his behalf only if:
(1) He submits to the corporation the record shareholder's written
consent to the dissent not later than the time the beneficial shareholder
asserts dissenters' rights; and
(2) He does so with respect to all shares of which he is the
beneficial shareholder.
Part 2. Procedure for Exercise of Dissenters' Rights.
(S)55-13-20. Notice of dissenters' rights.
(a) If proposed corporate action creating dissenters' rights under G.S.
55-13-02 is submitted to a vote at a shareholders' meeting, the meeting notice
must state that shareholders are or may be entitled to assert dissenters' rights
under this Article and be accompanied by a copy of this Article.
(b) If corporate action creating dissenters' rights under G.S. 55-13-02 is
taken without a vote of shareholders, the corporation shall no later than 10
days thereafter notify in writing all shareholders entitled to assert
dissenters' rights that the action was taken and send them the dissenters'
notice described in G.S. 55-13-22.
(c) If a corporation fails to comply with the requirements of this
section, such failure shall not invalidate any corporate action taken; but any
shareholder may recover from the corporation any damage which he suffered from
such failure in a civil action brought in his own name within three years after
the taking of the corporate action creating dissenters' rights under G.G. 55-13-
02 unless he voted for such corporate action.
(S)55-13-21. Notice of intent to demand payment.
(a) If proposed corporate action creating dissenters' rights under G.S.
55-13-02 is submitted to a vote at a shareholders' meeting, a shareholder who
wishes to assert dissenters' rights:
(1) Must give to the corporation, and the corporation must actually
receive, before the vote is taken written notice of his intent to demand
payment for his shares if the proposed action is effectuated; and
(2) Must not vote his shares in favor of the proposed action.
(b) A shareholder who does not satisfy the requirements of subsection (a)
is not entitled to payment for his shares under this Article.
(S)55-13-22. Dissenters' notice.
(a) If proposed corporate action creating dissenters' rights under G.S.
55-13-02 is authorized at a shareholder's meeting, the corporation shall mail by
registered or certified mail, return receipt requested, a written dissenters'
notice to all shareholders who satisfied the requirements of G.S. 55-13-21.
(b) The dissenters' notice must be sent no later than 10 days after
shareholder approval, or if no shareholder approval is required, after the
approval of the board of directors, of the corporate action creating dissenters'
rights under G.S. 55-13-02, and must:
(1) State where the payment demand must be sent and where and when
certificates for certificated shares must be deposited;
(2) Inform holders of uncertificated shares to what extent transfer
of the shares will be restricted after the payment demand is received;
(3) Supply a form for demanding payment;
(4) Set a date by which the corporation must receive the payment
demand, which date may not be fewer than 30 nor more than 60 days after the
date the subsection (a) notice is mailed; and
(5) Be accompanied by a copy of this Article.
(S)55-13-23. Duty to demand payment.
(a) A shareholder sent a dissenters' notice described in G.S. 55-13-22
must demand payment and deposit his share certificates in accordance with the
terms of the notice.
(b) The shareholder who demands payment and deposits his share
certificates under subsection (a) retains all other rights of a shareholder
until these rights are canceled or modified by the taking of the proposed
corporate action.
(c) A shareholder who does not demand payment or deposit his share
certificates where required, each by the date set in the dissenters' notice, is
not entitled to payment for his shares under this Article.
(S)55-13-24. Share restrictions.
(a) The corporation may restrict the transfer of uncertificated shares
from the date the demand for their payment is received until the proposed
corporate action is taken or the restrictions released under G.S. 55-13-26.
(b) The person for whom dissenters' rights are asserted as to
uncertificated shares retains all other rights of a shareholder until these
rights are canceled or modified by the taking of the proposed corporate action.
(S)55-13-25. Payment.
(a) As soon as the proposed corporate action is taken, or within 30 days
after receipt of a payment demand, the corporation shall pay each dissenter who
complied with G.S. 55-13-23 the amount the corporation estimates to be the fair
value of his shares, plus interest accrued to the date of payment.
(b) The payment shall be accompanied by:
(1) The corporation's most recent available balance sheet as of the
end of a fiscal year ending not more than 16 months before the date of
payment, an income statement for that year, a statement of cash flows for
that year, and the latest available interim financial statements, if any;
(2) An explanation of how the corporation estimated the fair value of
the shares;
(3) An explanation of how the interest was calculated;
(4) A statement of the dissenter's right to demand payment under G.S.
55-13-28; and
(5) A copy of this Article.
(S)55-13-26. Failure to take action.
(a) If the corporation does not take the proposed action within 60 days
after the date set for demanding payment and depositing share certificates, the
corporation shall return the deposited certificates and release the transfer
restrictions imposed on uncertificated shares.
(b) If after returning deposited certificates and releasing transfer
restrictions, the corporation takes the proposed action, it must send a new
dissenters' notice under G.S. 55-13-22 and repeat the payment demand procedure.
(S)55-13-28. Procedure if shareholder dissatisfied with corporation's payment
or failure to perform.
(a) A dissenter may notify the corporation in writing of his own estimate
of the fair value of his shares and amount of interest due, and demand payment
of the amount in excess of the payment by the corporation under G.S. 55-13-25
for the fair value of his shares and interest due, if:
(1) The dissenter believes that the amount paid under G.S. 55-13-25
is less than the fair value of his shares or that the interest due is
incorrectly calculated;
(2) The corporation fails to make payment under G.S. 55-13-25; or
(3) The corporation, having failed to take the proposed action, does
not return the deposited certificates or release the transfer restrictions
imposed on uncertificated shares within 60 days after the date set for
demanding payment.
(b) A dissenter waives his right to demand payment under this section
unless he notifies the corporation of his demand in writing (i) under
subdivision (a)(1) within 30 days after the corporation made payment for his
shares or (ii) under subdivisions (a)(2) and (a)(3) within 30 days after the
corporation has failed to perform timely. A dissenter who fails to notify the
corporation of his demand under subsection (a) within such 30-day period shall
be deemed to have withdrawn his dissent and demand for payment.
Part 3. Judicial Appraisal of Shares.
(S)55-13-30. Court action.
(a) If a demand for payment under G.S. 55-13-28 remains unsettled, the
dissenter may commence a proceeding within 60 days after the earlier of (i) the
date payment is made under G.S. 55-13-25, or (ii) the date of the dissenter's
payment demand under G.S. 55-13-28, by filing a complaint with the Superior
Court Division of the General Court of Justice to determine the fair value of
the shares and accrued interest. A dissenter who takes no action within the 60-
day period shall be deemed to have withdrawn his dissent and demand for payment.
(b) Reserved for future codification purposes.
(c) The court shall have the discretion to make all dissenters (whether or
not residents of the State) whose demands remain unsettled parties to the
proceeding as in an action against their shares and all parties must be served
with a copy of the complaint. Nonresidents may be served by registered or
certified mail or by publication as provided by law.
(d) The jurisdiction of the superior court in which the proceeding is
commenced under subsection (a) is plenary and exclusive. The court may appoint
one or more persons as appraisers to receive evidence and recommend decision on
the question of fair value. The appraisers have the powers described in the
order appointing them, or in any amendment to it. The parties are entitled to
the same discovery rights as parties in other civil proceedings. The proceeding
shall be tried as in other civil actions. However, in a proceeding by a
dissenter in a corporation that was a public corporation immediately prior to
consummation of the corporate action giving rise to the right of dissent under
G.S. 55-13-02, there is no right to a trial by jury.
(e) Each dissenter made a party to the proceeding is entitled to judgment
for the amount, if any, by which the court finds the fair value of his shares,
plus interest, exceeds the amount paid by the corporation.
(S)55-13-31. Court costs and counsel fees.
(a) The court in an appraisal proceeding commenced under G.S. 55-13-30
shall determine all costs of the proceeding, including the reasonable
compensation and expenses of appraisers appointed by the court, and shall assess
the costs as it finds equitable.
(b) The court may also assess the fees and expenses of counsel and experts
for the respective parties, in amounts the court finds equitable:
(1) Against the corporation and in favor of any or all dissenters if
the court finds the corporation did not substantially comply with the
requirements of G.S. 55-13-20 through 55-13-28; or
(2) Against either the corporation or a dissenter, in favor of either
or any other party, if the court finds that the party against whom the fees
and expenses are assessed acted arbitrarily, vexatiously, or not in good
faith with respect to the rights provided by this Article.
(c) If the court finds that the services of counsel for any dissenter were
of substantial benefit to other dissenters similarly situated, and that the fees
for these services should not be assessed against the corporation, the court may
award to these counsel reasonable fees to be paid out of the amounts awarded the
dissenters who were benefitted.
Form of Opinion
Board of Directors
Anson Bancorp, Inc.
211 South Greene Street
Wadesboro, North Carolina 28170
Members of the Board:
You have requested our opinion as to the fairness, from a financial point
of view, to the shareholders of common stock (the "Anson Common Stock") of Anson
Bancorp, Inc., ("Anson") of the consideration to be received by such
shareholders in a merger (the "Merger") of Anson with Uwharrie Capital
Corporation, Albemarle, North Carolina ("Uwharrie"), pursuant to the Agreement
and Plan of Reorganization and Merger dated August 3, 1999 (the "Agreement").
Unless otherwise noted, all terms used herein will have the same meaning as
defined in the Agreement.
As more specifically set forth in the Agreement, and subject to a number of
conditions and procedures described in the Agreement, in the Merger each of the
issued and outstanding shares of Anson Common Stock shall be exchanged for
$17.30 of cash.
Trident Securities ("Trident"), a division of McDonald Investments, Inc.,
is a financial consulting and investment banking firm experienced in the
valuation of business enterprises with considerable experience in the valuation
of thrift institutions. In the past, Trident and has provided financial
advisory services for Anson, including assisting Anson with its mutual to stock
conversion in June, 1998, and has received fees for the rendering of these
services. In addition, in the ordinary course of our business we may trade the
securities of Anson or Uwharrie for our own account and for the accounts of our
customers and, accordingly, may at any one time hold a long or short position in
such securities. Trident is not affiliated with Uwharrie or Anson.
In connection with rendering our opinion, we have reviewed and analyzed,
among other things, the following: (i) the Agreement, including the exhibits and
schedules thereto; (ii) certain publicly available information concerning Anson,
including the audited financial statements for each year in the three year
period ended June 30, 1999 (iii) certain other internal information, primarily
financial in nature, concerning the business and operations of Anson furnished
to us by Anson for purposes of our analysis; (iv) information with respect to
the trading market for Anson Common Stock; (v) certain publicly available
information with respect to other companies that we believe to be comparable to
Anson and the trading markets for such other companies' securities; and (vi)
certain publicly available information concerning the nature and terms of
certain other transactions that we consider relevant to our inquiry. We
Board of Directors
August 3, 1999
Page 2
have also met with certain officers and employees of Anson to discuss the
business and prospects of Anson, as well as other matters we believe relevant to
our inquiry.
In our review and analysis and in arriving at our opinion, we have assumed
and relied upon the accuracy and completeness of all of the financial and other
information provided to us or publicly available, and we have assumed and relied
upon the representations and warranties of Anson and Uwharrie contained in the
Agreement. We have not been engaged to, and have not independently attempted to,
verify any of such information. We have not conducted a physical inspection or
appraisal of any of the assets, properties or facilities of Anson nor have we
been furnished with any such evaluation or appraisal. We have also assumed that
the conditions to the Merger as set forth in the Agreement would be satisfied
and that the Merger would be consummated on a timely basis in the manner
contemplated by the Agreement.
It should be noted that this opinion is based on economic and market
conditions and other circumstances existing on, and information made available
as of, the date hereof and does not address any matters subsequent to such date.
In addition, our opinion is, in any event, limited to the fairness, as of the
date hereof, from a financial point of view, of the consideration to be received
and does not address Anson's underlying business decision to effect the Merger
or any other terms of the Merger.
We have acted as financial advisor to Anson in connection with the Merger
and will receive from Anson a fee for our services, a significant portion of
which is contingent upon the consummation of the Merger, as well as Anson's
agreement to indemnify us under certain circumstances.
It is understood that this opinion was prepared solely for the confidential
use of the Board of Directors and senior management of Anson and may not be
disclosed, summarized, excerpted from or otherwise publicly referred to without
our prior written consent. Our opinion does not constitute a recommendation to
any stockholder of Anson as to how such stockholder should vote at the
stockholders' meeting held in connection with the Merger.
Board of Directors
August 3, 1999
Page 3
Based upon and subject to the foregoing and such other matters as we
consider relevant, it is our opinion that as of the date hereof, the Merger
Consideration is fair, from a financial point of view, to the stockholders of
Anson.
Very truly yours,
TRIDENT SECURITIES,
a division of McDonald Investments, Inc.
[X] PLEASE MARK VOTES REVOCABLE PROXY
AS IN THIS EXAMPLE ANSON BANCORP, INC.
ANNUAL MEETING OF STOCKHOLDERS
NOVEMBER 30, 1999
10:00 a.m.
The undersigned hereby appoints the official proxy committee consisting of
all the members of the Board of Directors of Anson Bancorp, Inc. (the
"Company"), each with full power of substitution, to act as attorneys and
proxies for the undersigned, and to vote all shares of Common Stock of the
Company which the undersigned is entitled to vote only at the Annual Meeting of
Stockholders, to be held at the office of the Company, 211 South Greene Street,
Wadesboro, North Carolina, on November 30, 1999, at 10:00 a.m. and at any and
all adjournments thereof, as follows:
--------------
Please be sure to sign and date this Proxy in the box below. Date
- --------------------------------------------------------------------------------
- ---- Stockholder sign above ---------Co-holder (if any) sign above ------------
For Against Abstain
1. The approval of the Agreement and Plan ----- -------- ----------------
of Reorganization and Merger dated August
3, 1999 by and between Uwharrie ----- -------- ----------------
Capital Corp and Anson Bancorp, Inc.
For Withhold For All Except
2. The approval of the election of the ----- ---------- ----------------
following named directors:
----- ---------- ----------------
Preston A. Burns, John J. Crawford, W. Kenneth Huntley, Emmett S. Patterson,
John R. Potter, H. Patrick Taylor, Jr. and Eugene M. Ward who will serve as
directors of the Company until the 2000 Annual Meeting of Stockholders or until
their successors are duly elected and qualify.
INSTRUCTION: To withhold authority to vote for any individual nominee, mark "For
All Except" and write that nominee's name in the space provided below.
- --------------------------------------------------------------------------------
For Against Abstain
3. The ratification of Faulkner & ----- ---------- ----------------
Thompson, P.A. as the independent
auditor of the Company for the year ----- ---------- ----------------
ending June 30, 2000.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" EACH OF THE LISTED
PROPOSALS.
If a proxy is returned and no instructions are given, the proxy will be
voted (1) for approval of the Agreement and Plan of Reorganization and Merger;
---
(2) for the nominees for election to the Board of Directors named on this
---
Revocable Proxy; and (3) for the ratification of Faulkner & Thompson, P.A. as
---
the independent auditor for the Company for the 2000 fiscal year. If
instructions are given with respect to one but not all proposals, such
instructions as are given will be followed and the proxy will be voted for the
---
proposal on which no instructions are given.
DETACH ABOVE CARD, SIGN, DATE AND MAIL IN POSTAGE PAID ENVELOPE PROVIDED.
ANSON BANCORP, INC.
- --------------------------------------------------------------------------------
THIS PROXY IS SOLICITED BY THE BOARD OF DIRECTORS.
The above signed acknowledges receipt from the Company, prior to the
execution of this Proxy, of a Notice of Annual Meeting and a Proxy Statement
dated October 22, 1999.
Please sign exactly as your name appears hereon. When signing as attorney,
executor, administrator, trustee or guardian, please give your full title. If
shares are held jointly, each holder may sign, but only one signature is
required.
PLEASE ACT PROMPTLY
SIGN, DATE & MAIL YOUR PROXY CARD TODAY
- --------------------------------------------------------------------------------