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Exhibit 1
AFFILIATION AGREEMENT AND PLAN OF REORGANIZATION
AFFILIATION AGREEMENT AND PLAN OF REORGANIZATION (the "AGREEMENT"), dated
as of December 9, 1997, by and among UST CORP., a Massachusetts corporation (the
"BUYER") and SOMERSET SAVINGS BANK, a Massachusetts stock savings bank (the
"SELLER").
WHEREAS, the Buyer is the owner of all of the issued and outstanding
shares of Mosaic Corp., a Massachusetts corporation (the "BUYER CORP.") and
Buyer Corp. is the owner of all of the issued and outstanding shares of USTrust,
a Massachusetts bank and trust company ("BUYER BANK");
WHEREAS, the Boards of Directors of the Buyer, the Buyer Corp., the Buyer
Bank and the Seller have each approved and determined that it is in the best
interests of their respective stockholders to consummate the business
combination transactions provided for herein, involving the merger of Seller
with and into Buyer Bank (the "MERGER") by means of which the Buyer Corp. shall
acquire all of the assets and assume all of the liabilities of the Seller and
transfer such assets and liabilities to the Buyer Bank; and
WHEREAS, as a condition to, and after the execution of, this Agreement,
the Buyer and the Seller are entering into the Seller Option Agreement (the
"SELLER OPTION AGREEMENT"), attached hereto as Exhibit A, pursuant to which the
Seller has granted the option (the "SELLER OPTION") to the Buyer; and
WHEREAS, as a condition to, and after the execution of, this Agreement,
the Buyer and certain of the officers and directors of the Seller, are entering
into the Stockholders Agreements; and
WHEREAS, the parties desire to make certain representations, warranties
and agreements in connection with the Merger and to prescribe certain conditions
to the Merger;
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements contained herein, and intending to be
legally bound hereby, the parties agree as follows:
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ARTICLE I
DEFINITIONS
Except as otherwise provided herein or as otherwise clearly required by
the context, the following terms shall have the respective meanings indicated
when used in this Agreement:
"ACQUISITION TRANSACTION" shall have the meaning ascribed thereto in
Section 5.03 hereof.
"AFFILIATE" shall mean, with respect to any Person, any other Person
controlling, controlled by or under common control with such Person. As used in
this definition, "CONTROL" (including, with its correlative meanings,
"CONTROLLED BY" and "UNDER COMMON CONTROL WITH") means the possession, directly
or indirectly, of power to direct or cause the direction of the management and
policies of a Person whether through the ownership of voting securities, by
contract or otherwise.
"AGREEMENT" shall mean this Affiliation Agreement and Plan of
Reorganization by and between the Buyer and the Seller.
"ALTERNATIVE STRUCTURE" shall have the meaning ascribed thereto in
Section 2.11(i) hereof.
"ASSOCIATE" shall have the meaning ascribed thereto in Rule 14a-1 under
the Securities Exchange of 1934, as amended.
"AVERAGE PRICE" shall have the meaning ascribed thereto in
Section 2.09(f) hereof.
"BHCA" shall mean the Bank Holding Company Act of 1956, as amended.
"BUYER" shall have the meaning ascribed thereto in the preamble hereto.
"BUYER BALANCE SHEET" shall have the meaning ascribed thereto in
Section 3.05 hereof.
"BUYER BANK" shall have the meaning ascribed thereto in the recitals
hereto.
"BUYER BANK COMMON STOCK" shall have the meaning ascribed thereto in
Section 2.06(a) hereof.
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"BUYER COMMON STOCK" shall have the meaning ascribed thereto in Section
2.06(b) hereof.
"BUYER CORP." shall have the meaning ascribed thereto in the recitals
hereto.
"BUYER DISCLOSURE SCHEDULE" shall mean the disclosure schedule relating
to the Buyer delivered to the Seller together herewith.
"BUYER PREFERRED STOCK" shall have the meaning ascribed thereto in
Section 3.02(a) hereof.
"BUYER REPORTS" shall have the meaning ascribed thereto in Section 3.10
hereof.
"BUYER RIGHTS AGREEMENT" shall mean that certain Rights Agreement which
was adopted by the Buyer on September 19, 1995, as amended.
"CLOSING" shall mean the consummation of the Merger.
"CLOSING DATE" shall mean the time and date specified pursuant to Section
7.01 hereof as the time and date on which the parties hereto shall consummate
the Merger.
"CMPS" shall have the meaning ascribed thereto in Section 3.14 hereof.
"CODE" shall mean the Internal Revenue Code of 1986, as amended.
"COMPANIES" shall have the meaning ascribed thereto in Section 4.10(a)
hereof.
"CONFIDENTIAL INFORMATION" shall have the meaning ascribed thereto in
Section 5.02(b) hereof.
"CONFIDENTIALITY AGREEMENT" shall mean that certain agreement between the
Buyer and the Seller dated September 26, 1997.
"CONSENTS" shall have the meaning ascribed thereto in Section 6.01(b)
hereof.
"CONVERSION NUMBER" shall have the meaning ascribed thereto in Section
2.06(b) hereof.
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"DEPOSIT INSURANCE FUND" shall have the meaning ascribed thereto in
Section 4.02(b) hereof.
"DISCLOSURE SCHEDULES" shall mean the Buyer Disclosure Schedule and the
Seller Disclosure Schedule, considered together.
"DOJ" shall mean the United States Department of Justice.
"EFFECTIVE TIME" shall mean the date and time at which the Merger has
become effective pursuant to the applicable laws of The Commonwealth of
Massachusetts.
"EPA" shall mean the United States Environmental Protection Agency.
"EQUITY INVESTMENT" shall have the meaning set forth for such term as of
the date hereof in the FDIC's rules and regulations regarding activities and
investments of insured state banks at 12 C.F.R.ss.362.2(k).
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
"EXCHANGE ACT" shall have the meaning ascribed thereto in Section 3.05
hereof.
"FDIA" shall mean the Federal Deposit Insurance Act, as amended.
"FDIC" shall mean the Federal Deposit Insurance Corporation.
"FEDERAL RESERVE BOARD" shall mean the Board of Governors of the Federal
Reserve System or the Federal Reserve Bank of Boston, as applicable.
"FILED TAX RETURNS" shall have the meaning ascribed thereto in Section
4.10(a) hereof.
"GAAP" shall mean generally accepted accounting principles and practices
in effect from time to time within the United States applied consistently
throughout the period involved.
"GOVERNMENTAL AUTHORITY" shall mean any United States federal, state or
local governmental commission, board or other regulatory authority or agency,
including courts and other judicial bodies.
"HAZARDOUS MATERIAL" shall have the meaning ascribed thereto in
Section 4.19(i) hereof.
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"INCENTIVE STOCK OPTION" shall mean a stock option which is intended to
be an "incentive stock option" within the meaning of Section 422 of the Code.
"INJUNCTION" shall have the meaning ascribed thereto in Section 6.01(d)
hereof.
"INTERIM TRUST COMPANY" shall have the meaning ascribed thereto in
Section 2.12 hereof.
"IRS" shall mean the United States Internal Revenue Service.
"KELLY EMPLOYMENT AGREEMENT" shall mean the employment agreement, of even
date hereof, executed and delivered by [______], the Buyer and the Buyer Bank
and attached hereto as EXHIBIT E.
"LITIGATION" shall have the meaning ascribed thereto in Section 4.09
hereof.
"LOAN PROPERTY" shall have the meaning ascribed thereto in
Section 4.19(i) hereof.
"MBBI" shall mean the Massachusetts Board of Bank Incorporation.
"MBCL" shall mean the Massachusetts Business Corporation Law.
"MGL" shall mean the Massachusetts General Laws.
"MASSACHUSETTS COMMISSIONER" shall have the meaning ascribed thereto in
Section 3.04 hereof.
"MATERIAL ADVERSE EFFECT" shall mean, with respect to any Person, a
material adverse effect on the business, results of operations, financial
condition or prospects of such Person; PROVIDED, HOWEVER, that "Material Adverse
Effect" shall not be deemed to include the impact of (a) changes in laws and
regulations or interpretations thereof by courts or governmental authorities
generally applicable to depository institutions and their holding companies
(including changes in insurance deposit assessment rates and special assessments
with respect thereto), (b) changes in GAAP or regulatory accounting principles
generally applicable to financial institutions and their holding companies (c)
actions and omissions of the Seller taken with the prior written consent of the
Buyer, (d) reasonable expenses incurred by the Seller in connection with the
execution of this Agreement and consummation of the transactions contemplated
thereby and (e) changes in economic conditions (including changes in the level
of
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interest rates) to the extent such changes had a substantially similar effect on
comparable depository institutions in eastern Massachusetts.
"MERGER" shall have the meaning ascribed thereto in the recitals hereto.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"NASDAQ" shall mean the National Market System of the National
Association of Securities Dealers Automated Quotation System.
"PARTICIPATION FACILITY" shall have the meaning ascribed thereto in
Section 4.19(i) hereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation.
"PERSON" shall mean any individual, corporation, partnership, joint
venture, association, trust, unincorporated organization or other legal entity,
or any governmental agency or political subdivision thereof.
"PUBLIC ANNOUNCEMENT" shall mean an oral or written press release, public
announcement or public information disclosure by the Seller or the Buyer or any
of their subsidiaries relating to the Merger or the other transactions
contemplated hereby.
"RECORDS" means all records and original documents in the Seller's
possession which pertain to and are utilized by the Seller or any of its
subsidiaries to administer, reflect, monitor, evidence or record information
respecting its business and operations, including but not limited to all records
and documents relating to (a) corporate, regulatory, supervisory and litigation
matters, (b) tax planning and payment of taxes, (c) personnel and employment
matters, and (d) the business or conduct of the business of the Seller or any of
its subsidiaries.
"REPRESENTATIVE(S)" shall have the meaning ascribed thereto in Section
5.03(b) hereof.
"REQUISITE REGULATORY APPROVALS" shall have the meaning ascribed thereto
in Section 6.01(b) hereof.
"SEC" shall have the meaning ascribed thereto in Section 3.04 hereof.
"S-4" shall have the meaning ascribed thereto in Section 5.03(a) hereof.
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"SECOND BANK MERGER" shall have the meaning ascribed thereto in
Section 2.12 hereof.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SELLER" shall have the meaning ascribed thereto in the preamble to this
Agreement and, in addition, shall mean throughout this Agreement, unless the
context contemplates otherwise, the Seller and each of its subsidiaries,
considered on a consolidated basis.
"SELLER AFFILIATES" shall have the meaning ascribed thereto in Section
5.06 hereof.
"SELLER AFFILIATES AGREEMENT" shall mean the form of written agreement to
be executed and delivered to the Buyer prior to the Effective Time by the Seller
Affiliates, substantially in the form attached hereto as EXHIBIT B-2.
"SELLER BALANCE SHEET" shall have the meaning ascribed thereto in
Section 4.05 hereof.
"SELLER BENEFIT PLANS" shall have the meaning ascribed thereto in
Section 4.11(a) hereof.
"SELLER COMMON STOCK" shall have the meaning ascribed thereto in
Section 2.06(b) hereof.
"SELLER DISCLOSURE SCHEDULE" shall mean the disclosure schedule relating
to the Seller delivered to Buyer together herewith.
"SELLER EMPLOYEES" shall have the meaning ascribed thereto in
Section 5.12 hereto.
"SELLER OPTION" shall have the meaning ascribed thereto in the recitals
hereto.
"SELLER OPTION AGREEMENT" shall have the meaning ascribed thereto in the
recitals hereto.
"SELLER ORDER" shall mean that certain regulatory order issued by the
FDIC and consented to by the Seller, as modified on November 15, 1993.
"SELLER OTHER PLANS" shall have the meaning ascribed thereto in
Section 4.11(a) hereof.
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"SELLER PENSION PLANS" shall have the meaning ascribed thereto in
Section 4.11(a) hereof.
"SELLER PREFERRED STOCK" shall have the meaning ascribed thereto in
Section 4.02(a) hereof.
"SELLER PROXY STATEMENT" shall have the meaning ascribed thereto in
Section 5.04(a) hereof.
"SELLER REPORTS" shall have the meaning ascribed thereto in Section 4.15
hereof.
"SELLER STOCK OPTION PLANS" shall have the meaning ascribed thereto in
Section 2.10 hereof.
"SIGNIFICANT SUBSIDIARY" shall mean, when used with reference to a party,
any "significant subsidiary" of such party as such term is defined in Regulation
S-X of the SEC.
"STOCKHOLDERS AGREEMENTS" shall mean those certain Stockholder Agreements
dated as of the date hereof respectively between the Buyer and members of the
Seller's board of directors and executive management and substantially in the
form attached hereto as EXHIBIT B.
"SUBSIDIARIES" shall mean, when used with reference to a party, any
corporation, partnership or other organization, whether incorporated or
unincorporated, at least twenty-five (25%) percent of the securities or other
equity interests is directly or indirectly owned or controlled by such party or
by any one or more of its subsidiaries, or by such party and one or more of its
subsidiaries.
"SURVIVING BANK" shall have the meaning ascribed thereto in Section 2.01
hereof.
"SURVIVING BANK COMMON STOCK" shall have the meaning ascribed thereto in
Section 2.06(a) hereof.
"TAX" shall have the meaning ascribed thereto in Section 4.10(h)(A)
hereof.
"TAX RETURN" shall have the meaning ascribed thereto in
Section 4.10(h)(B) hereof.
"TERMINATION DATE" shall have the meaning ascribed thereto in
Section 8.01(b) hereof.
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"TRANSACTION DOCUMENTS" shall mean this Agreement, the Confidentiality
Agreement, the Seller Option Agreement, the Stockholders Agreements, and each
other agreement, document or instrument executed in connection herewith or
therewith.
"TRANSFERRED SELLER EMPLOYEES" shall have the meaning ascribed thereto in
Section 5.12 hereto.
"TRUST ACCOUNT SHARES" shall have the meaning ascribed thereto in
Section 3.12 hereof.
"YEAR 2000 PROBLEM" shall have the meaning ascribed thereto in
Section 3.19 hereof.
ARTICLE II
THE ACQUISITION AND MERGER
2.01 THE ACQUISITION AND THE MERGER. Subject to the terms and conditions
of this Agreement, in accordance with Section 36 of MGL Chapter 172, Section 34D
of MGL Chapter 168, and the MBCL, the Seller shall merge with and into the Buyer
Bank by means of which the Seller Corp. shall have acquired all of the assets
and assumed all of the liabilities of the Seller and transferred such assets and
liabilities to the Buyer Bank. By virtue of the Merger, the separate corporate
existence of the Seller shall cease. The Buyer Bank shall be the surviving bank
in the Merger (hereinafter sometimes referred to as the "SURVIVING BANK"), shall
continue to be an indirect wholly-owned subsidiary of the Buyer and shall
continue its corporate existence under the laws of The Commonwealth of
Massachusetts.
2.02 EFFECT OF THE MERGER.
(a) Upon the Effective Time, all of the estate, property, rights,
privileges, powers and franchises of each of the Seller and the Buyer
Bank and all of their property, real, personal and mixed, and all the
debts due on whatever account to any of them, as well as all stock
subscriptions and other choses in action belonging to any of them, shall
be transferred to and vested in the Surviving Bank, without further act
or deed, and all claims, demands, property and other interests shall be
the property of the Surviving Bank, and the title to all real estate
vested in each of the Seller or the Buyer Bank shall not revert or be in
any way impaired by reason of the Merger, but shall be vested in the
Surviving Bank.
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(b) Upon the Effective Time, the rights of creditors of each of
the Seller and the Buyer Bank shall not in any manner be impaired, nor
shall any liability or obligation, including taxes due or to become due,
or any claim or demand in any cause existing against such corporation, or
any stockholder, director, or officer thereof, be released or impaired by
the Merger, but the Surviving Bank shall be deemed to have assumed, and
shall be liable for, all liabilities and obligations of each of the
Seller and the Buyer Bank in the same manner and to the same extent as if
the Surviving Bank had itself incurred such liabilities or obligations.
The stockholders, directors, and officers of each of the Seller and the
Buyer Bank shall continue to be subject to all liabilities, claims and
demands existing against them as such at or before the Merger. No action
or proceeding then pending before any court or tribunal of The
Commonwealth of Massachusetts or otherwise in which either the Seller and
the Buyer Bank is a party, or in which any such stockholder, director, or
officer is a party, shall abate or be discontinued by reason of the
Merger, but any such action or proceeding may be prosecuted to final
judgment as though no merger had taken place, or the Surviving Bank may
be substituted as a party in place of either the Seller and the Buyer
Bank by the court in which such action or proceeding is pending.
2.03 ADDITIONAL ACTIONS. If, at any time after the Effective Time, the
Surviving Bank shall consider or be advised that any deeds, bills of sale,
assignments, assurances or any other actions or things are necessary or
desirable to vest, perfect or confirm of record or otherwise in the Surviving
Bank its right, title or interest in, to or under any of the rights, properties
or assets of the Seller acquired or to be acquired by the Surviving Bank as a
result of, or in connection with, the Merger, the officers and directors of the
Surviving Bank shall and will be authorized to execute and deliver, in the name
and on behalf of either the Seller or the Buyer Bank or otherwise, all such
deeds, bills of sale, assignments and assurances and to take and do, in the name
and on behalf of either the Seller or the Buyer Bank or otherwise, all such
other actions and things as may be necessary or desirable to vest, perfect or
confirm any and all right, title and interest in, to and under such rights,
properties or assets in the Surviving Bank or to otherwise carry out this
Agreement.
2.04 ARTICLES OF ORGANIZATION AND BY-LAWS. At the Effective Time, the
Articles of Organization of the Buyer Bank shall be the Articles of Organization
of the Surviving Bank and the By-Laws of the Buyer Bank shall be the By-Laws of
the Surviving Bank and, subject to the rights of Buyer Corp. as the sole
stockholder of the Buyer Bank, shall thereafter
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continue to be its Articles of Organization and By-Laws until amended as
provided therein or by law.
2.05 EFFECTIVE TIME; CONDITIONS. The Merger shall become effective as
set forth in the articles of merger which shall be submitted for filing to the
Secretary of the Commonwealth pursuant to Section 78(d) of the MBCL (the
"ARTICLES OF MERGER"). The term "Effective Time" shall be, the date and time
specified in the Articles of Merger.
2.06 EFFECT ON OUTSTANDING SHARES.
(a) BUYER BANK COMMON STOCK. Each of the 138,126 shares of common
stock of the Buyer Bank, par value $47.50 per share (the "BUYER BANK
COMMON STOCK"), issued and outstanding immediately prior to the Effective
Time, shall remain issued and outstanding after the Merger as shares of
the Surviving Bank, and thereafter, until changed, shall constitute all
of the issued and outstanding shares of the Surviving Bank.
(b) SELLER COMMON STOCK. (i) By virtue of the Merger,
automatically and without any action on the part of the holder thereof,
each share of common stock of the Seller, par value $1.00 per share (the
"SELLER COMMON STOCK"), issued and outstanding immediately prior to the
Effective Time (other than any such shares held directly or indirectly by
the Buyer, Buyer Corp. or the Buyer Bank, except in a fiduciary capacity,
and any such shares held as treasury stock by the Seller) shall become
and be converted into 0.19 shares of the common stock of the Buyer, par
value $0.625 per share ("BUYER COMMON STOCK") together with that number
of Buyer Rights associated therewith. The number of shares of Buyer
Common Stock into which each share of Seller Common Stock shall be
converted is hereinafter called the "CONVERSION NUMBER;" and
(ii) As of the Effective Time, each share of Seller Common Stock
held either directly or indirectly by the Buyer, Buyer Corp. or the Buyer
Bank (other than in a fiduciary capacity) or as treasury stock of the
Seller shall be canceled, retired and cease to exist, and no payment
shall be made with respect thereto. Each certificate which immediately
prior to the Effective Time represented outstanding shares of Seller
Common Stock shall on and after the Effective Time be deemed for all
purposes to represent the number of shares of Buyer Common Stock into
which the shares of Seller Common Stock represented by such certificate
shall have been converted pursuant to this Section 2.06(b).
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(c) SHARES OF DISSENTING HOLDERS. No conversion under Section
2.06(b) hereof shall be made with respect to the shares of Seller Common
Stock held by a Dissenting Holder (as such term is defined below);
PROVIDED, HOWEVER, that each share of Seller Common Stock outstanding
immediately prior to the Effective Time and held by a Dissenting Holder
who shall, after the Effective Time, withdraw his demand for appraisal or
lose his right of appraisal, in either case pursuant to the applicable
provisions of the MBCL, shall be deemed to be converted, as of the
Effective Time, into shares of Buyer Common Stock as specified in Section
2.06(b) hereof. The term "DISSENTING HOLDER" shall mean a holder of the
Seller Common Stock who has demanded appraisal rights in compliance with
the applicable provisions of the MBCL concerning the right of such holder
to dissent from the Merger and demand appraisal of such holder's shares
of Seller Common Stock.
(d) DISSENTER'S RIGHTS. Any Dissenting Holder (i) who files with
the Seller a written objection to the Merger before the taking of the
vote to approve this Agreement by the shareholders of the Seller and who
states in such objection that he intends to demand payment for his shares
if the Merger is concluded and (ii) whose shares are not voted in favor
of the Merger shall be entitled to demand payment for his shares of
Seller Common Stock and an appraisal of the value thereof, in accordance
with the provisions of Sections 86 through 98 of the MBCL.
2.07 ANTI-DILUTION. In the event that, subsequent to the date of this
Agreement but prior to the Effective Time, the outstanding shares of Buyer
Common Stock shall have been increased, decreased, changed into or exchanged for
a different number of shares or securities through reorganization of the Buyer's
capitalization, recapitalization, reclassification, stock dividend, stock split,
reverse stock split, or other like changes in the Buyer's capitalization, other
than pursuant to this Agreement, as the case may be (a "RECAPITALIZATION"), then
an appropriate and proportionate adjustment shall be made to the Conversion
Number so that each holder of Seller Common Stock shall receive under Section
2.06(b) hereof the number of shares of Buyer Common Stock (except for fractional
shares) that such holder would have held immediately following the
Recapitalization if the Merger had occurred immediately prior to the
Recapitalization or the record date therefor, as applicable. For purposes of
this Section 2.07, in no event shall the issuance of shares or securities by the
Buyer in connection with the Buyer acquiring directly or indirectly the stock or
assets of any corporation, bank or other entity be deemed to be a
"Recapitalization".
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2.08 TAX CONSEQUENCES. The parties intend that the Merger shall
constitute a reorganization within the meaning of Section 368(a) of the Code,
and that this Agreement shall constitute a "plan of reorganization" for the
purpose of Section 368 of the Code.
2.09 EXCHANGE AGENT. Prior to the Effective Time, the Buyer shall
appoint United States Trust Company as exchange agent (the "EXCHANGE AGENT") for
the purpose of exchanging certificates representing shares of Seller Common
Stock for certificates representing shares of Buyer Common Stock, and the Buyer
shall issue and deliver to the Exchange Agent certificates representing shares
of Buyer Common Stock and shall pay to the Exchange Agent such amounts of cash
as shall be required to be delivered to holders of shares of Seller Common Stock
in lieu of fractional shares of Buyer Common Stock, pursuant to Article II of
this Agreement.
2.10 PROCEDURES.
(a) Certificates which represent shares of Seller Common Stock
that are outstanding immediately prior to the Effective Time (a
"CERTIFICATE") and are converted into shares of Buyer Common Stock
pursuant to this Article II shall, after the Effective Time, be deemed to
represent shares of Buyer Common Stock into which such shares have been
converted and shall be exchangeable by the holders thereof in the manner
provided in the transmittal materials described below for new
certificates representing the shares of Buyer Common Stock into which
such shares have been converted.
(b) Buyer shall use all reasonable efforts to cause the Exchange
Agent to send to each holder of record of shares of Seller Common Stock
outstanding at the Effective Time as promptly as practicable, and in any
event within ten (10) days after the Effective Time, transmittal
materials (which shall be reviewed with and be reasonably acceptable to
Seller) for use in exchanging the certificates for such shares for
certificates for shares of Buyer Common Stock into which such shares of
Seller Common Stock have been converted pursuant to this Article II. Upon
surrender of a Certificate, together with a duly executed letter of
transmittal, and any other required documents, the holder of such
Certificate shall be entitled to receive, in exchange therefor (i) a
certificate representing that number of shares of Buyer Common Stock to
which such holder of Seller Common Stock shall have become entitled
pursuant to Section 2.06(b)(i) hereof, and such Certificate as
surrendered shall forthwith be canceled, and (ii) a check representing
the amount of cash in lieu of fractional shares, if any,
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which such holder has the right to receive in respect of the
Certificate surrendered pursuant to the provisions of Section 2.10(f)
hereof. No dividend or other distribution payable after the Effective
Time with respect to Buyer Common Stock shall be paid to the holder of
any unsurrendered Certificate until the holder thereof surrenders such
Certificate, at which time such holder shall receive all dividends and
distributions, without interest thereon, previously payable but
withheld from such holder pursuant hereto. After the Effective Time,
there shall be no transfers on the stock transfer books of the Seller
of shares of Seller Common Stock which were issued and outstanding at
the Effective Time and converted pursuant to the provisions of this
Article II. If, after the Effective Time, Certificates are presented
for transfer to the Seller, they shall be canceled and exchanged for
the shares of Buyer Common Stock deliverable in respect thereof as
determined in accordance with the provisions and procedures set forth
in this Article II.
(c) After the Effective Time, holders of certificates of Seller
Common Stock shall cease to be, and shall have no rights as, stockholders
of the Seller, other than (i) to receive shares of Buyer Common Stock
into which such shares have been converted and, if applicable, fractional
share payments pursuant to the provisions hereof, or (ii) the rights
afforded to any Dissenting Holder (as defined in Section 2.06(c)) under
applicable provisions of the MBCL.
(d) Neither the Buyer nor the Seller nor any other person shall be
liable to any former holder of shares of Seller Common Stock for any
shares or any dividends or distributions with respect thereto properly
delivered to a public official pursuant to applicable abandoned property,
escheat or similar laws.
(e) In the event any Certificate shall have been lost, stolen or
destroyed, upon receipt of appropriate evidence as to such loss, theft or
destruction and to the ownership of such Certificate by the person
claiming such Certificate to be lost, stolen or destroyed, and the
receipt by the Buyer of appropriate and customary indemnification, the
Buyer will issue in exchange for such lost, stolen or destroyed
Certificate shares of Buyer Common Stock and the fractional share
payment, if any, deliverable with respect thereof, as determined in
accordance with this Article II.
(f) In lieu of the issuance of fractional shares of Buyer Common
Stock pursuant to Section 2.06(b) of this Agreement, cash adjustments,
without interest, will be paid to the holders of Seller
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Common Stock in respect of any fractional share that would otherwise be
issuable and the amount of such cash adjustment shall be equal to an
amount in cash determined by multiplying such holder's fractional
interest by the "Average Price" of a share of Buyer Common Stock
(rounded to the nearest cent). The "AVERAGE PRICE" of a share of Buyer
Common Stock shall be the average of the last sale prices thereof as
reported on the National Association of Securities Dealers Automated
Quotation system over the ten (10) consecutive trading day period
immediately preceding the date on which the last Requisite Regulatory
Approval is received (without regard to any waiting period attached to
the effectiveness thereof). For purposes of determining whether, and in
what amounts, a particular holder of Seller Common Stock would be
entitled to receive cash adjustments under this Section 2.09(f), shares
of record held by such holder and represented by two or more
Certificates shall be aggregated.
(g) If any certificate representing shares of Buyer Common Stock
is to be issued in a name other than that in which the Certificate
surrendered in exchange therefor is registered, it shall be a condition
of the issuance thereof that the Certificate so surrendered shall be
properly endorsed (or accompanied by an appropriate instrument of
transfer) and otherwise in proper form for transfer (including, but not
limited to, that the signature of the transferor shall be properly
guaranteed by a commercial bank, trust company, member firm of the NASD
or other eligible guarantor institution), and that the person requesting
such exchange shall pay to the Exchange Agent in advance any transfer or
other taxes required by reason of the issuance of a certificate
representing shares of Buyer Common Stock in any name other than that of
the registered holder of the Certificate surrendered, or required for any
other reason, or shall establish to the reasonable satisfaction of the
Exchange Agent that such tax has been paid or is not payable.
2.11 CONVERSION OF OPTIONS. Each stock option (other than the Seller
Option) issued by the Seller to a third party pursuant to any stock option plan
of the Seller (the "SELLER STOCK OPTION PLANS"), whether or not currently
exercisable, which entitles such third party to purchase Seller Common Stock,
and which is outstanding and unexercised immediately prior to the Effective
Time, shall be converted into an option to purchase shares of Buyer Common
Stock, and the Buyer shall assume each such option in accordance with the terms
of the Seller Stock Option Plan under which it was granted and the stock option
or other agreement by which it is evidenced, with the following terms:
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(a) The number of shares of Buyer Common Stock shall be equal to
the product of the number of shares of Seller Common Stock previously
subject thereto and the Conversion Number, rounded down to the nearest
whole share; and
(b) The exercise price per share of Buyer Common Stock shall be
equal to the exercise price per share of Seller Common Stock previously
subject thereto divided by the Conversion Number, rounded up to the
nearest cent; and
(c) The duration and other terms of each such stock option shall
be otherwise governed by the terms of the Seller Stock Option Plan under
which such option was granted and shall be unchanged except that all
references to the Seller shall be deemed to be references to the Buyer;
and
(d) The Buyer shall assume the option as contemplated by Section
424(a) of the Code; and
(e) With respect to any stock option on Seller Common Stock which
is an Incentive Stock Option, the Buyer shall take such actions (other
than delaying the date the options on Buyer Common Stock become
exercisable beyond the date on which such options would otherwise become
exercisable pursuant to the relevant Seller Stock Option Plan) as may be
necessary or appropriate to cause such option, upon being converted to an
option on Buyer Common Stock, to remain such an Incentive Stock Option.
2.12 POSSIBLE ALTERNATIVE STRUCTURE. Notwithstanding any other
provision of this Agreement to the contrary, prior to the Effective Time, the
Buyer shall be entitled to (i) revise the structure of the Merger to provide
that the Seller shall be merged with and into a special purpose subsidiary
("INTERIM TRUST COMPANY") of the Buyer at the Effective Time or alternatively,
that Interim Trust shall be merged with and into the Seller at the Effective
Time (the "ALTERNATIVE STRUCTURE MERGER"), and/or (ii) acquire the shares of the
Seller Common Stock in a "Plan of Acquisition" pursuant to MGL Chapter 172,
Section 26B and simultaneously therewith merge the Seller with and into the
Buyer Bank; provided in each case that such alternative transfer would not
preclude the satisfaction of any closing condition set forth in Article VI
hereof. In the event that the structure of the Merger is changed in the manner
provided by this Section 2.12(i) hereof, the Seller and the Buyer Bank will
execute and deliver an agreement and plan of merger necessary to consummate the
merger of the Seller, as the survivor of the Alternative Structure Merger
referred to in (i) above with and into the Buyer Bank (the "SECOND BANK
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MERGER"). The Seller shall take such actions as the Buyer shall reasonably
request to effectuate the Second Bank Merger. Notwithstanding the foregoing or
any other provision of this Agreement to the contrary, the Buyer and the Seller
may jointly elect prior to the Effective Time, to substitute an alternative
structure for the accomplishment of the transactions contemplated by this
Agreement. Buyer and Seller agree that this Agreement shall be appropriately
amended in order to reflect any such revised sequence or structure.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer hereby represents and warrants to the Seller as follows:
3.01 CORPORATE ORGANIZATION.
(a) The Buyer is a corporation duly organized, validly existing
and in good standing under the laws of The Commonwealth of Massachusetts.
The Buyer has all requisite corporate power and authority to own, lease
or operate all of its properties and assets and to carry on its business
as it is now being conducted. The Buyer is duly licensed or qualified to
do business in each jurisdiction in which the nature of the business
conducted by it or the character or location of the properties and assets
owned, leased or operated by it makes such licensing or qualification
necessary, except where the failure to be so licensed or qualified would
not result in, with respect to the Buyer, a Material Adverse Effect. The
Buyer is a bank holding company registered with the Federal Reserve Board
under the BHCA.
(b) The Buyer Bank is a bank and trust company duly organized,
validly existing and in good standing under the laws of The Commonwealth
of Massachusetts. The Buyer Bank has all requisite power and authority to
own, lease or operate all of its properties and assets and to carry on
its business as it is now being conducted. The Buyer Bank is duly
licensed or qualified to do business in each jurisdiction in which the
nature of the business conducted by it or the character or location of
the properties and assets owned, leased, or operated by it makes such
licensing or qualification necessary, except where the failure to be so
licensed or qualified would neither individually nor in the aggregate
result in any Material Adverse Effect on the Buyer.
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3.02 CAPITALIZATION.
(a) The authorized capital stock of the Buyer consists of
45,000,000 shares of Buyer Common Stock and 4,000,000 shares of preferred
stock, par value $1.00 per share ("BUYER PREFERRED STOCK"). As of the
close of business on October 31, 1997, there were 29,719,593 shares of
Buyer Common Stock and no shares of Buyer Preferred Stock issued and
outstanding. In addition, as of the close of business on October 31,
1997, there were 1,396,808 shares of Buyer Common Stock reserved for
issuance upon exercise of outstanding stock options. All issued and
outstanding shares of Buyer Common Stock and Buyer Preferred Stock have
been duly authorized and validly issued and are fully paid, nonassessable
and free of preemptive rights, with no personal liability attaching to
the ownership thereof. Except (i) for rights issuable to holders of Buyer
Common Stock in accordance with the Buyer Rights Agreement, (ii) as
permitted under this Agreement, (iii) as referred to in this Section 3.02
(which includes director and employee stock options) or (iv) as reflected
in Section 3.02(a) of the Buyer Disclosure Schedule, the Buyer does not
have and is not bound by any outstanding subscriptions, options,
warrants, calls, commitments, rights agreements or agreements of any
character calling for the Buyer to issue, deliver or sell, or cause to be
issued, delivered or sold any shares of Buyer Common Stock or Buyer
Preferred Stock or any other equity security of the Buyer or any
subsidiary of the Buyer or any securities convertible into, exchangeable
for or representing the right to subscribe for, purchase or otherwise
receive any shares of Buyer Common Stock or Buyer Preferred Stock or any
other equity security of the Buyer or any subsidiary of the Buyer or
obligating the Buyer to grant, extend or enter into any such
subscriptions, options, warrants, calls, commitments, rights agreements
or agreements. As of the date hereof there are no outstanding contractual
obligations of the Buyer to repurchase, redeem or otherwise acquire any
shares of capital stock of the Buyer or any subsidiary of the Buyer.
(b) Section 3.02(b) of the Buyer Disclosure Schedule lists each of
the Significant Subsidiaries of the Buyer on the date of this Agreement
and indicates for each such subsidiary as of such date: (i) the
percentage and type of equity securities owned or controlled by the
Buyer; (ii) the jurisdiction of incorporation; and (iii) if the
subsidiary is a depository institution, whether it is a member of the
Federal Reserve System. Each of the subsidiaries of the Buyer that is a
depository institution is an "insured depository institution" as
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defined in the FDIA and applicable regulations thereunder, and the
deposits of each such depository institution are insured by the Bank
Insurance Fund of the FDIC in accordance with the FDIA, and each such
depository institution has paid all assessments and filed all reports
required by the FDIA. As of the date hereof, no proceedings for the
revocation or termination of such deposit insurance are pending or, to
the knowledge of the Buyer, threatened. No subsidiary of the Buyer has or
is bound by any outstanding subscriptions, options, warrants, calls,
commitments or agreements of any character calling for a subsidiary of
the Buyer to issue deliver or sell, or cause to be issued, delivered or
sold any equity security of the Buyer or of any subsidiary of the Buyer
or any securities convertible into, exchangeable for or representing the
right to subscribe for, purchase or otherwise receive any such equity
security or obligating a subsidiary of the Buyer to grant, extend or
enter into any such subscriptions, options, warrants, calls, commitments
or agreements. As of the date hereof, there are no outstanding
contractual obligations of any subsidiary of the Buyer to repurchase,
redeem or otherwise acquire any shares of capital stock of the Buyer or
any subsidiary of the Buyer. Except as may be provided under applicable
law in the case of any subsidiary of the Buyer that is a bank, all of the
shares of capital stock of each of the subsidiaries of the Buyer held by
the Buyer are fully paid and nonassessable and, except for directors'
qualifying shares, are owned by the Buyer free and clear of any claim,
lien, encumbrance or agreement with respect thereto.
3.03 AUTHORITY; NO VIOLATION.
(a) The Buyer has all requisite corporate power and authority to
execute and deliver this Agreement, the other Transaction Documents and
to consummate the transactions contemplated hereby and thereby. The
execution and delivery of this Agreement, the other Transaction Documents
and the consummation of the transactions contemplated hereby and thereby
have been duly and validly approved by the Board of Directors of the
Buyer. No other corporate proceedings on the part of the Buyer are
necessary to consummate any of the transactions so contemplated by this
Agreement. This Agreement and the other Transaction Documents have been
duly and validly executed and delivered by the Buyer and (assuming due
authorization, execution and delivery by the Seller) constitutes the
valid and binding obligation of the Buyer, enforceable against the Buyer
in accordance with their respective terms, except that enforcement
thereof may be
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limited by the receivership, conservatorship and supervisory powers of
bank regulatory agencies generally as well as bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting enforcement of
creditors' rights generally and except that enforcement thereof may be
subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law) and the
availability of equitable remedies.
(b) Neither the execution and delivery of this Agreement or the
other Transaction Documents by the Buyer nor the consummation by the
Buyer of the transactions contemplated by this Agreement; nor compliance
by the Buyer with any of the terms or provisions of this Agreement, will
(i) assuming that the consents and approvals referred to in Section 3.04
hereof are duly obtained, violate in any material respect any statute,
code, ordinance, rule, regulation, judgment, order, writ, decree or
injunction applicable to the Buyer, or (ii) violate, conflict with,
result in a breach of any provisions of, constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, result in the termination of, accelerate the performance
required by, or result in a right of termination or acceleration or the
creation of any lien, security interest, charge or other encumbrance upon
any of the properties or assets of the Buyer or the Buyer Bank under, any
of the terms, conditions or provisions of (A) the Articles of
Organization or other charter document of like nature or By-Laws of the
Buyer, or (B) any note, bond, mortgage, indenture, deed of trust,
license, lease, agreement or other instrument or obligation to which the
Buyer is a party as issuer, guarantor or obligor, or by which they or any
of their respective properties or assets may be bound or affected,
except, in the case of clause (ii)(B) above, for such violations,
conflicts, breaches or defaults which either individually or in the
aggregate will not have a Material Adverse Effect on the Buyer.
3.04 CONSENTS AND APPROVALS. Except for consents, waivers or approvals
of, or filings or registrations with, the Federal Reserve Board, the FDIC, the
Commissioner of Banks of The Commonwealth of Massachusetts (the "MASSACHUSETTS
COMMISSIONER"), the MBBI, the Securities and Exchange Commission (the "SEC"),
the Secretary of State of The Commonwealth of Massachusetts, NASDAQ, and the
DOJ, no consents, waivers or approvals of or filings or registrations with any
public body or authority are necessary, and no consents or approvals of any
third parties (which term does not include the Board of Directors of the Buyer
are necessary, in connection with (a) the execution and delivery
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by the Buyer of this Agreement or (b) the consummation by the Buyer of the
transactions contemplated by this Agreement. The Buyer has no knowledge of any
fact or circumstance relating to the Buyer or its subsidiaries that is
reasonably likely to materially impede or delay receipt of any Consents of
regulatory or governmental authorities or result in the imposition of a
restriction or condition of the type referenced in Section 6.02(d) herein.
3.05 FINANCIAL STATEMENTS. The Buyer has made available to the Seller
copies of (a) the consolidated balance sheets of the Buyer and its subsidiaries
as of December 31 for the fiscal years 1994 through 1996, inclusive, and the
related consolidated statements of income, changes in stockholders' equity and
cash flows for the fiscal years 1994 through 1996, inclusive, as reported in the
Annual Reports of the Buyer on Form 10-K for each of the three (3) fiscal years
ended December 31, 1994 through December 31, 1996 filed with the SEC under the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), in each case
accompanied by the audit report of Arthur Andersen LLP, independent public
accountants for the Buyer, and (b) the unaudited consolidated balance sheet of
the Buyer and its subsidiaries as of September 30, 1997, the related unaudited
consolidated statements of income and changes in stockholders' equity for the
nine (9) months ended September 30, 1997 and September 30, 1996 and the related
unaudited consolidated statements of cash flows for the nine (9) months ended
September 30, 1997 and September 30, 1996, all as reported in the Buyer's
Quarterly Report on Form 10-Q for the quarter ended September 30, 1997 filed
with the SEC under the Exchange Act. The December 31, 1996 consolidated balance
sheet ("BUYER BALANCE SHEET") of the Buyer (including the related notes, where
applicable) and the other financial statements referred to herein (including the
related notes, where applicable) fairly present, and the financial statements to
be included in any reports or statements (including reports on Forms 10-Q and
10-K) to be filed by the Buyer with the SEC after the date hereof will fairly
present, the consolidated financial position and results of the consolidated
operations and cash flows and changes in stockholders' equity of the Buyer and
its subsidiaries for the respective fiscal periods or as of the respective dates
therein set forth; and each of such statements (including the related notes,
where applicable) has been and will be prepared in accordance with GAAP
consistently applied during the periods involved, except as otherwise set forth
in the notes thereto (subject, in the case of unaudited interim statements, to
normal year-end adjustments). The books and records of the Buyer and its
subsidiaries have been, and are being, maintained in accordance with GAAP and
applicable legal and regulatory requirements.
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3.06 ABSENCE OF UNDISCLOSED LIABILITIES. None of the Buyer or any of its
subsidiaries has any obligation or liability (contingent or otherwise) that is
material on a consolidated basis to the Buyer, or that when combined with all
similar obligations or liabilities would be material on a consolidated basis to
the Buyer or any of its Significant Subsidiaries, except as disclosed or
reflected in the Buyer Balance Sheet or any of the other financial statements of
the Buyer described in Section 3.05 above.
3.07 BROKER'S FEES. Neither the Buyer nor any of its officers, directors,
employees or agents has employed any broker, finder or financial advisor or
incurred any liability for any fees or commissions in connection with any of the
transactions contemplated by this Agreement, except for the fees incurred in
connection with the engagement of Fox-Pitt, Kelton Inc. and for legal,
accounting and other professional fees payable in connection with the Merger.
The Buyer will be responsible for the payment of all such fees.
3.08 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as disclosed in the
Buyer's Quarterly Report on Form 10-Q for the quarter ended September 30, 1997
or in any Current Reports of the Buyer on Form 8-K filed prior to the date of
this Agreement, since December 31, 1996, the Buyer and its subsidiaries have not
incurred any material liability, except in the ordinary course of their business
consistent with their past practices, nor has there been any change in the
business, assets, financial condition or results of operations of the Buyer or
any of its subsidiaries which has had, or is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on the Buyer or any
Significant Subsidiary of the Buyer.
3.09 LEGAL PROCEEDINGS. There is no suit, action or proceeding pending
or, to the best knowledge of the Buyer, threatened, against the Buyer or any
subsidiary of the Buyer or challenging the validity or propriety of the
transactions contemplated by this Agreement, as to which there is a reasonable
possibility of an adverse determination and which, if adversely determined,
would, individually or in the aggregate, have a Material Adverse Effect on the
Buyer or any Significant Subsidiary of the Buyer or otherwise materially
adversely affect the Buyer's ability to perform its obligations under this
Agreement, nor is there any judgment, decree, injunction, rule or order of any
legal or administrative body or arbitrator outstanding against the Buyer or any
subsidiary of the Buyer having, or which insofar as reasonably can be foreseen,
in the future could have, any such effect.
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3.10 REPORTS. Since January 1, 1994, the Buyer and its subsidiaries have
filed, and subsequent to the date hereof will file, all reports, registrations
and statements, together with any amendments required to be made with respect
thereto, that were and are required to be filed with (a) the SEC, including, but
not limited to, Forms 10-K, Forms 10-Q, Forms 8-K and proxy statements (and all
such reports, registrations and statements have been or will be delivered by the
Buyer to the Seller), (b) the Federal Reserve Board, (c) the FDIC, and (d) any
applicable state securities or banking authorities (except, in the case of state
securities authorities, no such representation is made as to filings which are
not material) (all such reports and statements are collectively referred to
herein as the "BUYER REPORTS"). As of their respective dates, the Buyer Reports
complied and, with respect to filings made after the date of this Agreement,
will at the date of filing comply, in all material respects with all of the
statutes, rules and regulations enforced or promulgated by the regulatory
authority with which they were filed and did not contain and, with respect to
filings made after the date of this Agreement, will not at the date of filing
contain, any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
3.11 BUYER COMMON STOCK. Buyer Common Stock to be issued pursuant to this
Agreement is duly authorized and, when issued at the Effective Time, will be
validly issued, fully paid and nonassessable and not subject to preemptive
rights, with no personal liability attaching thereto and will have the same
rights in all respects as the shares of the Buyer Common Stock outstanding on
the date of issuance.
3.12 OWNERSHIP OF SELLER COMMON STOCK. Neither the Buyer nor, to its best
knowledge, any of its affiliates or associates (as such terms are defined under
the Exchange Act) (a) beneficially own, directly or indirectly, or (b) are
parties to any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of, in each case, shares of capital
stock of the Seller, which in the aggregate represent five percent (5%) or more
of the outstanding shares of capital stock of the Seller entitled to vote
generally in the election of directors (other than shares in trust accounts,
managed accounts and the like that are beneficially owned by third parties (any
such shares being hereinafter referred to as, "TRUST ACCOUNT SHARES")).
3.13 AGREEMENTS WITH BANKING AUTHORITIES. Except as set forth in Section
3.13 of the Buyer Disclosure Schedule, neither the Buyer nor any of its
subsidiaries is a party to any commitment, letter (other than letters
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addressed to regulated depository institutions generally), written agreement,
memorandum of understanding, order to cease and desist with, or has been
required to adopt any board resolution by, any federal or state governmental
entity charged with the supervision or regulation of banks or bank holding
companies or engaged in the insurance of bank deposits which restricts
materially the conduct of its business, or in any manner relates to its capital
adequacy, credit policies, management or overall safety and soundness or such
entity's ability to perform its obligations hereunder, and neither the Buyer nor
any of its subsidiaries has received written notification from any such federal
or state governmental entity that any such Person may be requested to enter
into, or otherwise be subject to, any such commitment, letter, written
agreement, memorandum of understanding or cease and desist order.
3.14 COMPLIANCE WITH APPLICABLE LAW. Each of the Buyer and each
Significant Subsidiary thereof holds all licenses, franchises, permits and
authorizations necessary for the lawful conduct of its business, and each of the
Buyer and each Significant Subsidiary thereof has complied with and is not in
violation of or default in any respect under any, applicable law, statute,
order, rule, regulation or policy of, or agreement with, any federal, state or
local governmental agency or authority relating to the Buyer or such Significant
Subsidiary (other than where such default or noncompliance will not result in,
or create the possibility of resulting in, a material limitation on the conduct
of the business of the Buyer, will not cause, or create the possibility of
causing, the Buyer or any Significant Subsidiary thereof to incur any financial
penalty in excess of $20,000 (including but not limited to any civil money
penalty or other monetary sanction under Section 8(i)(2) of the FDIA, 12 U.S.C.
ss.1818(i)(2), or under any applicable state law ("CMPS")), and will not
otherwise result, or create the possibility of resulting in any Material Adverse
Effect on the Buyer or any Significant Subsidiary of the Buyer), and neither the
Buyer nor any Significant Subsidiary of the Buyer has received any notice of any
violation of any such law, statute, order, rule, regulation, policy or
agreement, or commencement of any proceeding in connection with any such
violation (including but not limited to any hearing or investigation relating to
the imposition or contemplated imposition of CMPs), and does not know of any
violation of, any such law, statute, order, rule, regulation, policy or
agreement which would have such a result.
3.15 POOLING OF INTERESTS TREATMENT. To the Buyer's knowledge, it has not
taken any action that would, or is likely to, cause the Merger to fail to
qualify for "pooling of interests" accounting treatment under Accounting
Principles Board Opinion No. 16.
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3.16 EMPLOYEES.
(a) Except as set forth in Section 3.16(a) of the Buyer Disclosure
Schedule, neither the Buyer nor any of its subsidiaries maintains or
contributes to any "employee pension benefit plan" (the "BUYER PENSION
Plans"), as such term is defined in Section 3(2) of ERISA or "employee
welfare benefit plan" (the "BUYER BENEFIT PLANS"), as such term is
defined in Section 3(1) of ERISA, stock option plan, stock purchase plan,
deferred compensation plan, other employee benefit plans for employees of
the Buyer or its subsidiaries, or any other plan, program or arrangement
of the same or similar nature that provides benefits to non-employee
directors of the Buyer or its subsidiaries.
(b) The current value of the assets of each of the Buyer Pension
Plans subject to Title IV of ERISA exceeds that plan's "Benefit
Liabilities" as that term is defined in Section 4001(a)(16) of ERISA,
when determined under actuarial factors that would apply if that plan
terminated in accordance with all applicable legal requirements.
(c) To the knowledge of the Buyer, each of the Buyer Pension Plans
and each of the Buyer Benefit Plans, which are maintained or contributed
to by the Buyer, has been administered in compliance with its terms in
all material respects and is in compliance in all material respects with
the applicable provisions of ERISA (including, but not limited to, the
funding and prohibited transactions provisions thereof), the Code and
other applicable laws, except to the extent that non-compliance would not
have a Material Adverse Effect on the Buyer, taken as a whole.
(d) To the knowledge of the Buyer, there has been no reportable
event within the meaning of Section 4043(b) of ERISA or any waived
funding deficiency within the meaning of Section 412(d)(3) (or any
predecessor section) of the Code with respect to any Buyer Pension Plan.
(e) To the knowledge of the Buyer, each of the Buyer Pension Plans
which is intended to be a qualified plan within the meaning of Section
401(a) of the Code is so qualified, and the Buyer is not aware of any
fact or circumstance which would adversely affect the qualified status of
any such plan.
(f) Except as set forth in Section 3.16(f) of the Buyer Disclosure
Schedule, the Buyer has made or provided for all
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contributions to the Buyer Pension Plans required by the Buyer
thereunder.
3.17 CAPITALIZATION. As of the date hereof, without giving effect to the
transactions contemplated hereby, the subsidiaries of the Buyer which are
"insured depository institutions" are (a) "well capitalized", as defined in the
FDIA, and (b) meet all capital requirements, standards and ratios required by
each state or federal bank regulator with jurisdiction over such Persons. No
such regulator has indicated that it will condition any of the regulatory
approvals upon an increase in any such Person's capital or compliance with any
special capital requirement, standard or ratio.
3.18 CRA RATING. The Buyer Bank was rated "Outstanding" following its
most recent Community Reinvestment Act examination by the FDIC. The Buyer has
not received any notice of, and the Buyer has no knowledge of, any planned or
threatened objection by any community group to the transactions contemplated
hereby.
3.19 YEAR 2000. The Buyer has made available to the Seller a copy of the
report furnished by the Buyer to the regulatory agencies having jurisdiction
over the Buyer and its subsidiaries concerning the modifications required to the
Buyer's computer systems, if any, in order for each systems to contain no
deficiencies relating generally to formatting for entering dates (commonly
referred to and referred to herein as the "Year 2000 Problem"). The Buyer is not
aware of any inability on the part of any customer, insurance company or service
provider with which the Buyer transacts business to timely remedy their own
deficiencies in respect of the Year 2000 Problem, which inability, individually
or in the aggregate, reasonably could be expected to have a Material Adverse
Effect on the Buyer.
3.20 BUYER INFORMATION. The information relating to the Buyer and its
subsidiaries to be contained in the Seller Proxy Statement and the S-4, as
described in Section 5.04 hereof, and any other documents filed with the SEC or
any regulatory agency in connection herewith, to the extent such information is
provided in writing by the Buyer, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make such
information not misleading.
3.21 DISCLOSURE. No representation or warranty contained in this
Agreement, and no statement contained in any certificate, list or other writing,
including but not necessarily limited to the Buyer Disclosure Schedule,
furnished to the Seller pursuant to the provisions hereof, to the best knowledge
of the Buyer, contains or will contain any untrue statement of a material fact
or omits to state a material fact necessary in
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order to make the statements herein or therein not misleading. To the best
knowledge of the Buyer, all information material to the Merger and the
transactions contemplated by this Agreement, or which is necessary to make the
representations and warranties herein contained not misleading, has been
disclosed in writing to the Seller.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Buyer as follows:
4.01 CORPORATE ORGANIZATION.
(a) The Seller is a stock savings bank organized, validly existing
and in good standing under the laws of The Commonwealth of Massachusetts.
The Seller has all requisite corporate power and authority to own, lease
or operate all of its properties and assets and to carry on its business
as it is now being conducted. The Seller and each of its subsidiaries is
duly licensed or qualified to do business in each jurisdiction in which
the nature of the business conducted by it or the character of the
properties and assets owned, leased or operated by it makes such
licensing or qualification necessary, except where the failure to be so
qualified would not result in, with respect to the Seller or such
subsidiary, a Material Adverse Effect. Section 4.01(a) of the Seller
Disclosure Schedule lists each of the jurisdictions in which the Seller
and its subsidiaries possess any such foreign qualifications or licenses
and lists such license held in such jurisdiction. The Seller has
previously made available to Buyer for inspection true and complete
copies as amended to date of the (i) Charter and By-Laws of the Seller
and each subsidiary, and (ii) all records in the possession of the Seller
of all meetings and other corporate action taken by the stockholders,
Board of Directors and committees thereof, of the Seller and each
subsidiary.
(b) Except as set forth in Section 4.01(b) of the Seller
Disclosure Schedule, the Seller has no subsidiaries and no Equity
Investments (other than its investments in such subsidiaries). Section
4.01(b) of the Seller Disclosure Schedule lists for each subsidiary and
Equity Investment of the Seller, the percentage of Seller's ownership in
such subsidiary or Equity Investment, the activities of such subsidiary
or Equity Investment, including but not limited to, whether or not such
subsidiary or Equity Investment is engaged principally or otherwise,
directly or indirectly through a
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joint venture, partnership or other entity, in the sale of mutual funds,
insurance or the development of real estate. Except as set forth in
Section 4.01(b) of the Seller Disclosure Schedule, no subsidiary or
Equity Investment of the Seller engages in any activity, principally or
otherwise, that is not permitted for a national bank.
(c) Except as set forth in Section 4.01(c) of the Seller
Disclosure Schedule, the minute books of the Seller and its subsidiaries
accurately reflect in all material respects all meetings held of, and
actions taken by, since January 1, 1992, their respective stockholders
and Boards of Directors.
4.02 CAPITALIZATION.
(a) The authorized capital stock of the Seller consists of (i)
20,000,000 shares of Seller Common Stock, of which, as of December 9,
1997, 16,651,602 shares were issued and outstanding, and (ii) 5,000,000
shares of preferred stock, par value $1.00 per share (the "SELLER
PREFERRED STOCK"), of which, as of December 9, 1997 no shares were issued
and outstanding. In addition, as of the close of business on December 9,
1997, there were 570,750 shares of Seller Common Stock reserved for
issuance upon the exercise of outstanding stock options. All issued and
outstanding shares of Seller Common Stock have been duly authorized and
validly issued and are fully paid, nonassessable and free of preemptive
rights, with no personal liability attaching to the ownership thereof.
Except with respect to the Seller Option and as referred to in this
Section 4.02(a), the Seller does not have and is not bound by any
outstanding subscriptions, options, warrants, calls, commitments or
agreements of any character calling for the Seller to issue, deliver or
sell, or cause to be issued, delivered or sold any shares of Seller
Common Stock, or any other equity security of the Seller or any
securities convertible into, exchangeable for or representing the right
to subscribe for, purchase or otherwise receive any shares of Seller
Common Stock or any other equity security of the Seller or obligating the
Seller to grant, extend or enter into any such subscriptions, options,
warrants, calls, commitments or agreements. As of the date hereof, there
are no outstanding contractual obligations of the Seller to repurchase,
redeem or otherwise acquire any shares of capital stock of the Seller. In
addition, Section 4.02(a) of the Seller Disclosure Schedule sets forth,
as of the date hereof, the number of shares of Seller Common Stock
subject to outstanding stock options, the various dates on which such
options were
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granted, the various exercise prices for such options, the number of
shares for which such options are presently vested, and the vesting
schedule for the remaining balance of shares for which such options are
not presently vested.
(b) Seller is an "insured depository institution" as defined in
the FDIA and applicable regulations thereunder, and the deposits of the
Seller are insured by the Bank Insurance Fund of the FDIC in accordance
with the FDIA and by the Deposit Insurance Fund of the Mutual Savings
Central Fund, Inc. of Massachusetts (the "DEPOSIT INSURANCE FUND") in
excess of the FDIC's insurance limits. The Seller has paid all
assessments and filed all reports required by the FDIA and the Deposit
Insurance Fund and no amounts are owned to the Deposit Insurance Fund by
the Seller or to the Seller by the Deposit Insurance Fund. As of the date
hereof no proceedings for the revocation or termination of such deposit
insurance are pending or to the knowledge of the Seller, threatened.
(c) No subsidiary of the Seller has or is bound by any outstanding
subscriptions, options, warrants, calls, commitments or agreements of any
character calling for a subsidiary of the Seller to issue, deliver or
sell, or cause to be issued, delivered or sold any equity security of the
Seller or of any subsidiary of the Seller or any securities convertible
into, exchangeable for or representing the right to subscribe for,
purchase or otherwise receive any such equity security or obligating a
subsidiary of the Seller to grant, extend or enter into any such
subscriptions, options, warrants, calls, commitments or agreements. As of
the date hereof, there are no outstanding contractual obligations of any
subsidiary of the Seller to repurchase, redeem or otherwise acquire any
shares of capital stock of the Seller or any subsidiary of the Seller.
All of the shares of capital stock of each of the subsidiaries of the
Seller held by the Seller are fully paid and nonassessable and, except
for directors' qualifying shares, are owned by the Seller free and clear
of any claim, lien, encumbrance or agreement with respect thereto.
4.03 AUTHORITY; NO VIOLATION.
(a) The Seller has full corporate power and authority to execute
and deliver this Agreement, the other Transaction Documents and, subject
only to the approval of the Seller's stockholders, to consummate the
transactions contemplated hereby and thereby. The execution and delivery
of this Agreement, the
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other Transaction Documents and the consummation of the transactions
contemplated hereby and thereby have been duly and validly approved by
the Board of Directors of the Seller. The Board of Directors of the
Seller has directed that this Agreement and the transactions contemplated
hereby be submitted to the stockholders of the Seller for approval at a
meeting of such stockholders and, except for the adoption of this
Agreement by its stockholders, no other corporate proceedings on the part
of the Seller are necessary to consummate any of the transactions so
contemplated by this Agreement. This Agreement and the other Transaction
Documents have been duly and validly executed and delivered by the Seller
and (assuming due authorization, execution and delivery by the Buyer )
constitute the valid and binding obligations of the Seller, enforceable
against the Seller in accordance with their respective terms, except that
enforcement thereof may be limited by the receivership, conservatorship
and supervisory powers of bank regulatory agencies generally as well as
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting enforcement of creditors' rights generally and except that
enforcement thereof may be subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law) and the availability of equitable remedies.
(b) Neither the execution and delivery of this Agreement or the
other Transaction Documents by the Seller, nor the consummation by the
Seller of the transactions contemplated by this Agreement, or the other
Transaction Documents, nor compliance by the Seller, with any of the
terms or provisions thereof, will (i) assuming that the consents and
approvals referred to in Section 4.04 are duly obtained, violate in any
material respect any statute, code, ordinance, rule, regulation,
judgment, order, writ, decree or injunction applicable to the Seller or
any of its subsidiaries or any of their respective properties or assets,
or (ii) violate, conflict with, result in a breach of any provisions of,
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, result in the termination of,
accelerate the performance required by, or result in a right of
termination or acceleration or the creation of any lien, security
interest, charge or other encumbrance upon any of the properties or
assets of the Seller or any of its subsidiaries under, any of the terms,
conditions or provisions of (A) the Charter or By-Laws of the Seller or
any of its subsidiaries, or (B) any note, bond, mortgage, indenture, deed
of trust, license, lease, agreement or other instrument or obligation to
which the Seller or any of its
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subsidiaries is a party as issuer, guarantor or obligor, or by which it
or any of its properties or assets may be bound or affected, except, in
the case of clause (ii)(B) above, for such violations, conflicts,
breaches or defaults which either individually or in the aggregate will
not have a Material Adverse Effect on the Seller.
4.04 CONSENTS AND APPROVALS. Except for consents, waivers or approvals
of, or filings or registrations with, the Federal Reserve Board, the FDIC, the
Massachusetts Commissioner, the MBBI, the SEC, the Secretary of State of The
Commonwealth of Massachusetts, the DOJ, NASDAQ, certain state "Blue Sky" or
securities commissioners or the stockholders of the Seller, no consents, waivers
or approvals of or filings or registrations with any public body or authority
are necessary, and except as set forth in Section 4.04 of the Seller Disclosure
Schedule, no consents or approvals of any third parties (which term does not
include the Board of Directors and stockholders of the Seller) are necessary, in
connection with (a) the execution and delivery by the Seller of this Agreement
or (b) the consummation by the Seller, of the transactions contemplated by this
Agreement. The affirmative vote of holders of two-thirds of the outstanding
shares of Seller Common Stock is the only vote of the holders of any class or
series of capital stock or other securities of the Seller necessary to approve
of this Agreement and the transactions contemplated hereby. The Seller has no
knowledge of any fact or circumstance relating to the Seller or its subsidiaries
that is reasonably likely to materially impede or delay receipt of any Consents
of regulatory or governmental authorities or result in the imposition of a
restriction or condition of the type referenced in Section 6.02(d) herein.
4.05 FINANCIAL STATEMENTS. The Seller has made available to the Buyer
copies of (a) the consolidated balance sheets of the Seller and its subsidiaries
as of December 31 for the fiscal years 1994 through 1996, inclusive, and the
related consolidated statements of operations, changes in stockholders' equity
and cash flows for the fiscal years 1994 through 1996, inclusive, as reported in
the Seller's Annual Reports on Form F-2 for each of the three (3) fiscal years
ended December 31, 1994 through December 31, 1996, which were filed with the
FDIC under the Exchange Act, in each case accompanied by the audit report of
Wolf & Company, P.C., independent auditors for the Seller, and (b) the unaudited
consolidated balance sheets of the Seller and its subsidiaries as of September
30, 1997 and September 30, 1996, the related unaudited consolidated statements
of operations and changes in stockholders' equity for the nine (9) months ended
September 30, 1997 and September 30, 1996 and the related unaudited consolidated
statements of cash flows for the nine (9) months ended September 30, 1997 and
September 30, 1996, all as
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reported in the Seller's Quarterly Report on Form F-4 for the nine (9) months
ended September 30, 1997 filed with the FDIC under the Exchange Act. The
December 31, 1996 consolidated balance sheet (the "SELLER BALANCE SHEET") of the
Seller (including the related notes, where applicable) and the other financial
statements referred to herein (including the related notes, where applicable)
fairly present, and the financial statements to be included in any reports or
statements (including reports on Forms F-3 and F-2) to be filed by the Seller
with the FDIC after the date hereof will fairly present, the consolidated
financial position and results of the consolidated operations and cash flows and
changes in shareholders' equity of the Seller and its subsidiaries for the
respective fiscal periods or as of the respective dates therein set forth; and
each of such statements (including the related notes, where applicable) has been
prepared in accordance with GAAP consistently applied during the periods
involved, except as otherwise set forth in the notes thereto (subject, in the
case of unaudited interim statements, to normal year-end adjustments). The books
and records of the Seller and its subsidiaries have been, and are being,
maintained in all material respects in accordance with GAAP and applicable legal
and regulatory requirements.
4.06 ABSENCE OF UNDISCLOSED LIABILITIES. Except as set forth in Section
4.06 of the Seller Disclosure Schedule, neither the Seller nor its subsidiaries
has any obligation or liability (contingent or otherwise) that is material on a
consolidated basis to the Seller, except as disclosed or reflected in the Seller
Balance Sheet or any of the other financial statements described in Section 4.05
above or Section 4.06 of the Seller Disclosure Schedule.
4.07 BROKER'S FEES. Neither the Seller nor any of its or its
subsidiaries' officers, directors, employees or agents has employed any broker,
finder or financial advisor or incurred any liability for any fees or
commissions in connection with any of the transactions contemplated by this
Agreement, except for the engagement of Legg Mason Woods Walker, Inc. and the
fees incurred in connection with such engagement, and except for legal,
accounting and other professional fees payable in connection with the Merger.
The Seller will be responsible for the payment of such fees.
4.08 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as set forth in Section
4.08 of the Seller Disclosure Schedule, or as disclosed in the Seller's
Quarterly Report on Form F-4 for the nine (9) months ended September 30, 1997 or
in any Current Reports of the Seller on Form F-3 filed prior to the date of this
Agreement, since December 31, 1996, (i) the business of the Seller and each of
its subsidiaries has been conducted only
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in the ordinary course consistent with past practice, (ii) there has not been
any change in the business, assets, financial condition or results of operations
of the Seller or any of its subsidiaries, which, individually or in the
aggregate, has had or is reasonably likely to have a Material Adverse Effect on
the Seller, (iii) there has not been any material change in any policy or
practice followed by the Seller nor any of its subsidiaries in the ordinary
course of business, (iv) neither the Seller nor any of its subsidiaries has
incurred any material liability, except in the ordinary course of its business
consistent with prudent banking practices, (v) there has not been any material
agreement, contract or commitment entered into, or agreed to be entered into,
except for those in the ordinary course of business; (vi) there has not been any
increase in or establishment of any bonus, insurance, severance (including
severance after a change in control), deferred compensation, pension,
retirement, profit sharing, stock option (including, without limitation, the
granting of any stock options, stock appreciation rights, performance awards, or
restricted stock awards), stock purchase, life insurance or split dollar life
insurance, retiree medical or life insurance, or other employee benefit plan, or
any other increase in the compensation payable or to become payable to any
officers or key employees of the Seller or any of its subsidiaries, except with
respect to cash compensation, in the ordinary course of business consistent with
past practice; (vii) there has not been any change in any of the accounting
methods or practices of the Seller or any of its subsidiaries other than changes
required by applicable law or GAAP; and (viii) the Seller has not filed any
application with any Governmental Authority with respect to its branches, its
real properties or its operations.
4.09 LEGAL PROCEEDINGS. Seller has furnished to the Buyer copies of (i)
all attorney responses to the most recent request of the independent auditors
for the Seller and its subsidiaries with respect to Litigation (as defined
below) and (ii) a written list of all legal and regulatory proceedings filed
against the Seller or its subsidiaries since that date. Except as set forth in
Section 4.09(a) of the Seller Disclosure Schedule, there is no suit, action,
claim, investigation or administrative or other proceeding pending or, to the
knowledge of the Seller, threatened, formal or informal, against the Seller or
any of its subsidiaries before any court, arbitrator or Governmental Authority,
including but not limited to any federal or state investigation concerning or
alleging violations of federal or state securities laws or currency transaction
reporting laws and regulations or challenging the validity or propriety of the
transactions contemplated by this Agreement (each a "LITIGATION"), as to which
there is a reasonable probability of an adverse determination and which, if
adversely determined, would, individually or in the aggregate, have a Material
Adverse Effect on the Seller or otherwise materially adversely
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affect the Seller's ability to perform its obligations under this Agreement, nor
is there any judgment, decree, injunction, rule or order of any legal or
administrative body or arbitrator outstanding against the Seller or any of its
subsidiaries having, or which insofar as reasonably can be foreseen, in the
future could have, any such effect. Section 4.09(a) of the Seller Disclosure
Schedule lists, as of the date of this Agreement, all orders, judgments,
injunctions and decrees issued or threatened against, or investigations
undertaken by, any and all Governmental Authorities against or concerning the
Seller since January 1990. In accordance with GAAP, Seller has not established a
reserve for Litigation on the Seller Balance Sheet. The Seller has made
available to the Buyer copies of all documents in its possession related to the
matter referred to in Section 4.09(b) of the Seller Disclosure Schedule.
4.10 TAXES AND TAX RETURNS.
(a) The Seller and each of its subsidiaries (referred to for
purposes of this Section 4.10, collectively, as the "COMPANIES") have
timely filed in correct form all Tax Returns that were required to be
filed by any of them since October 31, 1991 (the "FILED TAX RETURNS"),
each Filed Tax Return has been prepared in material compliance with all
applicable laws and regulations, and all Filed Tax Returns are true and
accurate in all material respects. The Companies have made available to
the Buyer correct and complete copies of all federal income Tax Returns
filed with respect to the Companies for taxable periods ended on or after
October 31, 1993, and all examination reports, and statements of
deficiencies assessed against or agreed to by any of the Companies with
respect to such taxable periods.
(b) The Companies have paid all Taxes shown as being due on the
Filed Tax Returns.
(c) Except as set forth in Section 4.10(c) of the Seller
Disclosure Schedule, no assessment that has not been settled or otherwise
resolved has been made with respect to Taxes not shown on the Filed Tax
Returns No deficiency in Taxes or other proposed adjustment that has not
been settled or otherwise resolved has been asserted in writing by any
taxing authority against any of the Companies. Except as set forth in
Section 4.10(c) of the Seller Disclosure Schedule, no Tax Return of any
of the Companies is now under examination by any applicable taxing
authority nor have any of the Companies consented to any extension of the
period for assessment or collection with respect to any Tax. There are no
liens
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for Taxes (other than current Taxes not yet due and payable) on any of
the assets of any Company. Except as set forth in Section 4.10(c) of the
Seller Disclosure Schedule, none of the Companies has requested or been
granted an extension of the time for filing any Tax Return to a date
later than the Effective Time. Since October 31, 1991 and, to the
knowledge of the Seller, prior to such date, no claim has been made by a
taxing authority in a jurisdiction where any of the Companies does not
pay Tax or file Tax Returns that such of the Companies is or may be
subject to Taxes assessed by that jurisdiction.
(d) Adequate provision has been made on the Seller Balance Sheet
for all Taxes of the Companies in respect of all periods through the date
thereof.
(e) Except as set forth in Section 4.10(e) of the Seller
Disclosure Schedule, none of the Companies is a party to or bound by any
Tax indemnification, Tax allocation or Tax sharing agreement with any
person or entity or has any current or potential contractual obligation
to indemnify any other person or entity with respect to Taxes.
(f) Except as set forth in Section 4.10(f) of the Seller
Disclosure Schedule, none of the Companies has filed or been included in
a combined, consolidated or unitary income Tax Return (including any
consolidated federal income Tax Return) other than one of which one of
the Companies or the Seller was the parent.
(g) Except as set forth in Section 4.10(g) of the Seller
Disclosure Schedule, none of the Companies has made any payments, is
obligated to make any payments, or is a party to any agreement that could
obligate it to make any payments that will not be deductible under Code
Section 280G.
(h) The Companies have withheld and paid all material Taxes
required to have been withheld and paid in connection with amounts paid
or owing to any employee, creditor, independent contractor or other third
party.
(i) For purposes of this Section 4.10:
(A) "TAX" means any federal, state, local or foreign income,
gross receipts, franchise, estimated, alternative minimum, add-on
minimum, sales, use, transfer, registration, value added, excise,
natural resources, severance, stamp,
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occupation, premium, windfall profit, environmental, customs,
duties, real property, personal property, capital stock,
intangibles, social security, unemployment, disability, payroll,
license, employee or other tax or levy, of any kind whatsoever,
including any interest, penalties or additions to tax in respect
of the foregoing.
(B) "TAX RETURN" means any return, declaration, report,
claim for refund, information return or other document (including
any related or supporting estimates, elections, schedules,
statements or information) filed or required to be filed in
connection with the determination, assessment or collection of any
Tax or the administration of any laws, regulations or
administrative requirements relating to any Tax.
4.11 EMPLOYEES.
(a) Except as set forth in Section 4.11(a) of the Seller
Disclosure Schedule, neither the Seller nor any of its subsidiaries
maintains or contributes to any "employee pension benefit plan" (the
"SELLER PENSION Plans"), as such term is defined in Section 3(2) of
ERISA, "employee welfare benefit plan" (the "SELLER BENEFIT PLANS"), as
such term is defined in Section 3(1) of ERISA, stock option plan, stock
purchase plan, deferred compensation plan, other employee benefit plan
for employees of the Seller or its subsidiaries, or any other plan,
program or arrangement of the same or similar nature that provides
benefits to non-employee directors of the Seller or its subsidiaries
(collectively, the "SELLER OTHER PLANS").
(b) Except as set forth in Section 4.11(b) of the Seller
Disclosure Schedule, the Seller shall have delivered to the Buyer
contemporaneous with the delivery of the Seller Disclosure Schedule a
complete and accurate copy of each of the following with respect to each
of the Seller Pension Plans, the Seller Benefit Plans and the Seller
Other Plans: (i) plan document; (ii) trust agreement or insurance
contract, if any; (iii) most recent IRS determination letter, if any;
(iv) most recent actuarial report, if any; and (v) most recent annual
report on Form 5500, if any.
(c) The value of the assets of each of the Seller Pension Plans
subject to Title IV of ERISA will equal or exceed as of the Effective
Time that plan's "Benefit Liabilities" as that term is defined in Section
4001(a)(16) of ERISA, when determined under actuarial factors that would
apply if that plan terminated in
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accordance with all applicable legal requirements, and, as of the date
hereof none of such plans are underfunded by any material amounts.
(d) To the knowledge of the Seller, each of the Seller Pension
Plans and each of the Seller Benefit Plans which are maintained or
contributed to by the Seller has been administered in compliance with its
terms in all material respects and is in compliance in all material
respects with the applicable provisions of ERISA (including, but not
limited to, the funding and prohibited transactions provisions thereof),
the Code and other applicable laws, except to the extent that
non-compliance would not have a Material Adverse Effect on the Seller,
taken as a whole.
(e) To the knowledge of the Seller, there has been no reportable
event within the meaning of Section 4043(b) of ERISA or any waived
funding deficiency within the meaning of Section 412(d)(3) (or any
predecessor section) of the Code with respect to any Seller Pension Plan.
(f) Except as set forth in Section 4.11(f) of the Seller
Disclosure Schedule, the Seller has made or provided for all
contributions to the Seller Pension Plans required by the Seller
thereunder.
(g) The Seller does not contribute and has not contributed to any
"Multiemployer Plan," as such term is defined in Section 3(37) of ERISA.
(h) To the knowledge of the Seller, each of the Seller Pension
Plans which is intended to be a qualified plan within the meaning of
Section 401(a) of the Code is so qualified, and the Seller is not aware
of any fact or circumstance which would adversely affect the qualified
status of any such plan.
(i) Except as set forth in Section 4.11(i) of the Seller
Disclosure Schedule, the Seller is not a party to and does not maintain
or contribute to any contract or other arrangement with any employee or
group of employees, providing severance payments, stock or
stock-equivalent payments or post-employment benefits of any kind or
providing that any otherwise disclosed plan, program or arrangement will
irrevocably continue, with respect to any or all of its participants, for
any period of time.
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4.12 AGREEMENTS WITH BANKING AUTHORITIES. Except as set forth in Section
4.12 of the Seller Disclosure Schedule, neither the Seller nor any of its
subsidiaries is a party to any commitment, letter (other than letters addressed
to regulated depository institutions generally), written agreement, memorandum
of understanding, order to cease and desist with, or has been required to adopt
any board resolution by, any federal or state governmental entity charged with
the supervision or regulation of banks or engaged in the insurance of bank
deposits which restricts materially the conduct of its business, or in any
manner relates to its capital adequacy, credit policies, management or overall
safety and soundness or such entity's ability to perform its obligations
hereunder, and the Seller has not received written notification from any such
federal or state governmental entity that any such Person may be requested to
enter into, or otherwise be subject to, any such commitment, letter, written
agreement, memorandum of understanding or cease and desist order. The Seller
Order has been terminated.
4.13 DEPOSIT ACCOUNTS. The deposit accounts of the Seller comply in all
material respects with applicable laws. To the knowledge of the Seller's Chief
Executive Officer, Chief Financial Officer, Chief Accounting Officer and Senior
Vice President-Retail, after due inquiry, (i) Section 4.13 of the Seller
Disclosure Schedule sets forth a list of the twenty-five largest deposit account
holders of the Seller as of September 30, 1997 and (ii) Section 4.13 of the
Seller Disclosure Schedule also includes with respect to each deposit account
holder referred to in the preceding clause, the deposit accounts of such account
holder's Affiliates and Associates as of such date.
4.14 MATERIAL AGREEMENTS. Except as set forth in any of the Seller
Disclosure Schedules or the index of exhibits in the Seller's Annual Report on
Form F-2 for the year ended December 31, 1996, as of the date of this Agreement,
except for this Agreement and the other Transaction Documents, neither the
Seller nor any of its subsidiaries is a party to or is bound by (a) any
agreement, arrangement, or commitment that is material to the financial
condition, results of operations or business of the Seller, except those entered
into in the ordinary course of business; (b) any written (or oral, if material)
agreement, arrangement, or commitment relating to the employment of any person
or the election or retention in office or severance of any present or former
director or officer of the Seller or any of its subsidiaries; (c) any contract,
agreement, or understanding with any labor union; (d) any agreement by and among
the Seller, its subsidiaries and/or any Affiliate thereof; or (e) any contract
or agreement or amendment thereto that would be required to be filed as an
Exhibit to
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a Form F-2 filed by the Seller as of the date hereof that has not been filed as
an Exhibit to the Form F-2 filed by it for 1996.
4.15 OWNERSHIP OF PROPERTY. Section 4.15 of the Seller Disclosure
Schedule sets forth a true and complete list of all real property owned, leased
or operated by the Seller or any of its subsidiaries (including all of the
branches of the Seller and all of the Seller's or any of its subsidiaries'
properties acquired by foreclosure proceedings in the ordinary course of
business) as of the date hereof. Except as set forth in Section 4.15 of the
Seller Disclosure Schedule, the Seller and its subsidiaries have good and
marketable title to all assets and properties, whether real or personal,
tangible or intangible, and all other assets and properties reflected in the
Seller's consolidated balance sheet as of September 30, 1997, or acquired
subsequent thereto subject to no encumbrances, liens, mortgages, security
interests or pledges, except (a) those items that secure liabilities that are
reflected in said balance sheet or the notes thereto or incurred in the ordinary
course of business after the date of such balance sheet and not otherwise
prohibited by the terms hereof, (b) dispositions for adequate consideration in
the ordinary course of business or as expressly permitted by the terms hereof,
(c) statutory liens for amounts not yet delinquent or which are being contested
in good faith, (d) those items that secure public or statutory obligations or
any discount with, borrowing from, or other obligations to, any Federal Reserve
Bank or Federal Home Loan Bank, inter-bank credit facilities, or any transaction
by a subsidiary acting in a fiduciary capacity, and (e) such encumbrances,
liens, mortgages, security interests, and pledges that are not material in
character, amount or extent. Seller has all licenses and permits necessary to
conduct the business of banking at its branch premises and Seller has made
available to the Buyer a copy of all deeds and leases relating to all real
property owned or leased by the Seller or its subsidiaries. Except as set forth
in Section 4.15 of the Seller Disclosure Schedule, the Seller has not received
any notice of violation of any applicable zoning or environmental regulation,
ordinance or other law, order, regulation, or requirement relating to its
properties. Each of the Seller and its subsidiaries as lessee has the right
under valid and existing leases to occupy, use, possess and control all property
leased by the Seller and its subsidiaries as presently occupied, used, possessed
and controlled by the Seller or its subsidiaries. Neither the Seller nor any of
its subsidiaries is in default, and there has not occurred any event that with
the lapse of time or giving of notice or both would constitute a default, under
any leases pursuant to which the Seller or any of its subsidiaries leases any
real property, which default with respect to any such lease is material to the
cost of such lease or which would result in the obligation of the Seller to pay
an amount in excess of $10,000. All such leases constitute legal, valid and
binding
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obligations of the Seller or such subsidiary and, to the knowledge of the
Seller, the other party thereto, enforceable by the Seller or such subsidiary in
accordance with their respective terms, except that enforcement thereof may be
limited by the receivership, conservatorship and supervisory powers of bank
regulatory agencies generally as well as bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting enforcement of creditors' rights
generally and except that enforcement thereof may be subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law) and the availability of equitable remedies.
Section 4.15 of the Seller Disclosure Schedule sets forth the expiration date
and renewal terms of each such lease. The Seller has not received notice of, or
made a claim with respect to, any breach or default under any leases pursuant to
which the Seller leases any real property.
4.16 REPORTS. Since January 1, 1994, the Seller has filed, and subsequent
to the date hereof will file, all reports, together with any amendments required
to be made with respect thereto, that were and are required to be filed with (a)
the FDIC, including but not limited to, Forms F-2, F-3 and F-4 and proxy
statements (and all such reports, registrations and statements have been or will
be delivered by the Seller to the Buyer), (b) the Federal Reserve Board, and (c)
any applicable state securities or banking authorities (all such reports and
statements are collectively referred to herein as the " SELLER REPORTS"). As of
their respective dates, the Seller Reports complied and, with respect to filings
made after the date of this Agreement, will at the date of filing comply, in all
material respects with all of the statutes, rules and regulations enforced or
promulgated by the regulatory authority with which they were filed and did not
contain and, with respect to filings made after the date of this Agreement, will
not at the date of filing contain, any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
4.17 COMPLIANCE WITH APPLICABLE LAW. Except as set forth in Section 4.17
of the Seller Disclosure Schedule, each of the Seller and its subsidiaries holds
all licenses, franchises, permits and authorizations necessary for the lawful
conduct of their respective businesses, and each of the Seller and its
subsidiaries has complied with, and is not in default in any respect under any,
applicable law, statute, order, rule, regulation or policy of, or agreement
with, any federal, state or local governmental agency or authority relating to
the Seller and its subsidiaries (other than where such default or noncompliance
will not result in, or create the possibility of resulting in, a material
limitation on the conduct of the
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business of the Seller, will not cause or create the possibility of causing, the
Seller or any subsidiary to incur any financial penalty in excess of $5,000
(including but not limited to CMPs), and will not otherwise result, or create
the possibility of resulting in any Material Adverse Effect on the Seller), and
the Seller has not received any notice of any violation of, or commencement of
any proceeding in connection with any such violation (including but not limited
to any hearing or investigation relating to the imposition or contemplated
imposition of fines or penalties), and does not know of any violation of, any
such law, statute, order, rule, regulation, policy or agreement which would have
such a result.
4.18 POOLING OF INTERESTS TREATMENT. To the Seller's knowledge, it has
not taken any action that would or is likely to cause the Merger to fail to
qualify for "pooling of interests" accounting treatment under Accounting
Principles Board Opinion No. 16.
4.19 ENVIRONMENTAL MATTERS.
(a) Except as set forth in Section 4.19(a) of the Seller
Disclosure Schedule, since 1985, the Seller, each of its subsidiaries and
the Participation Facilities (as such term is hereinafter defined) are
and have been in material compliance with all applicable laws, rules,
regulations, standards and requirements of the EPA and of state and local
agencies with jurisdiction over pollution or protection of the
environment.
(b) Except as set forth in Section 4.19(b) of the Seller
Disclosure Schedule, there is no suit, claim, action or proceeding now
pending or, to the best knowledge of the Seller, threatened, before any
court, governmental agency or board or other forum in which the Seller,
any of its subsidiaries or any Participation Facility has been or, with
respect to threatened proceedings, may be, named as a defendant (i) for
alleged noncompliance (including by any predecessor), with any
environmental law, rule or regulation or (ii) relating to the release
into the environment of any Hazardous Material (as hereinafter defined)
whether or not occurring at or on a site owned, leased or operated by the
Seller, any of its subsidiaries or any Participation Facility.
(c) Except as set forth in Section 4.19(c) of the Seller
Disclosure Schedule, to the best knowledge of the Seller, there is no
suit, claim, action or proceeding pending, or threatened, before any
court, governmental agency or board or other forum in which any Loan
Property has been or, with respect to threatened proceedings, may be,
named as a defendant or involved (i) for alleged
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noncompliance (including by any predecessor) with any environmental law,
rule or regulation or (ii) relating to the release into the environment
of any Hazardous Material whether or not occurring at or on a site owned,
leased, operated or involving a Loan Property.
(d) Except as set forth in Sections 4.19(a), (b) and (c) of the
Seller Disclosure Schedule, to the best knowledge of the Seller's
management, there is no reasonable basis for any suit, claim, action or
proceeding as described in subsection (b) or (c) of this Section 4.19.
(e) Except as set forth in Section 4.19(e) of the Seller
Disclosure Schedule, during and, to the best knowledge of the Seller,
prior to the period of (i) the ownership or operation by the Seller or
any of its subsidiaries of any of their current properties, or (ii) the
participation by the Seller or any of its subsidiaries in the management
of any Participation Facility, there has been no release of Hazardous
Material in, on, under or affecting such properties, that would subject
the Seller or such subsidiary to any liability which would result in a
Material Adverse Effect with respect to the Seller or such subsidiary.
Except as set forth in Section 4.19(e) of the Seller Disclosure Schedule,
to the best knowledge of the Seller, none of the branch offices of the
Seller or any other real property currently owned, operated or leased by
the Seller was at any time the site of any gas station, manufacturing
plant or industrial business or activity or was used to a significant
extent as a site on which any Hazardous Material, was stored, produced or
otherwise located.
(f) Except as set forth in Section 4.19(f) of the Seller
Disclosure Schedule, the Seller and its subsidiaries have asked for
representations from borrowers and/or have conducted due diligence with
respect to each of the Loan Properties which secure obligations to the
Seller under loan transactions in outstanding principal amount of at
least $1,000,000, and in the course thereof, or subsequent thereto,
nothing has come to the attention of the Seller or any of its
subsidiaries which could be reasonably likely to prevent the Seller or
such subsidiary from exercising its right to foreclose on its security
interest therein.
(g) None of the disclosures set forth in Section 4.19 of the
Seller Disclosure Schedule is reasonably likely to result in the
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closure of any of the branch offices of the Seller or in a Material
Adverse Effect with respect to the Seller or any subsidiary.
(h) The transactions contemplated herein are not subject to the
provisions of any applicable environmental restrictive transfer law.
(i) The following definitions apply for purposes of this Section
4.19: (i) "LOAN PROPERTY" means any property in which the Seller or any
of its subsidiaries holds a security interest, and, where required by the
context, said term means the owner or operator of such property; (ii)
"PARTICIPATION FACILITY" means any facility in which the Seller or any of
its subsidiaries participates in the management and, where required by
the context, said term means the owner or operator of such property;
(iii) "HAZARDOUS MATERIAL" means any pollutant, contaminant, hazardous
material, hazardous waste, or hazardous substance as defined under the
Comprehensive Environmental Response, Compensation, and Liability Act, 42
U.S.C. ss.9601 ET SEQ., or the Resource Conservation and Recovery Act, 42
U.S.C. ss.ss.6901 ET SEQ., the Clear Water Act, 33 U.S.C. ss.1321, ET
SEQ., or any other federal, state or local law relating to safety,
health, or environmental protection or any regulations promulgated under
any of the foregoing, and specifically includes oil and any other
petroleum derived products, asbestos, polychlorinated biphenyls (PCB's)
and, with respect to any residential property, lead paint and radon.
4.20 OWNERSHIP OF BUYER COMMON STOCK. Except as set forth in
Section 4.20 of the Seller Disclosure Schedule, as of the date hereof, neither
the Seller nor, to its best knowledge, any of its Affiliates or Associates (a)
beneficially own, directly or indirectly, or (b) are parties to any agreement,
arrangement or understanding for the purpose of acquiring, holding, voting or
disposing of, in each case, shares of capital stock of the Buyer, which in the
aggregate represent five percent (5%) or more of the outstanding shares of
capital stock of the Buyer entitled to vote generally in the election of
directors (other than Trust Account Shares).
4.21 INSURANCE. The Seller and each of its subsidiaries are presently
insured, and since January 1, 1992 have been insured, for reasonable amounts
against such risks as companies engaged in a similar businesses in a similar
location would, in accordance with good business practice, customarily be
insured. The Seller has made available to the Buyer copies of policies relating
to insurance maintained by the Seller and
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its subsidiaries with respect to their properties and the conduct of their
businesses.
4.22 LABOR. No work stoppage involving the Seller or any of its
subsidiaries is pending or, to the best knowledge of the Seller's management,
threatened. Neither the Seller nor any of its subsidiaries is involved in, or,
to the best knowledge of the Seller's management, threatened with or affected
by, any dispute, arbitration, lawsuit or administrative proceeding relating to
labor or employment matters. No employees of the Seller or its subsidiaries are
represented by any labor union, and, to the best knowledge of the Seller's
management, no labor union is attempting to organize employees of the Seller or
its subsidiaries.
4.23 MATERIAL INTERESTS OF CERTAIN PERSONS. Except as disclosed in
Section 4.23 of the Seller Disclosure Schedule, no officer or director of the
Seller, or any Associate of any such officer or director, has any material
interest in any material contract or property (real or personal), tangible or
intangible, used in or pertaining to the business of the Seller.
4.24 ABSENCE OF REGISTRATION OBLIGATIONS. The Seller is not under any
obligation, contingent or otherwise, by reason of any agreement to register any
of its securities under the Securities Act which will survive the Merger.
4.25 LOANS. (a) All currently outstanding loans of, or current extensions
of credit by, the Seller (individually, a "LOAN," and collectively, the "LOANS")
were solicited, originated and currently exist in material compliance with all
applicable requirements of federal and state law and regulations promulgated
thereunder and applicable loan policies of the Seller, except for such changes
to the circumstances of the obligor thereunder or the collateral occurring
subsequent to the origination thereof and over which the Seller had no control
and except as set forth in Section 4.25(a) of the Seller Disclosure Schedule.
Except as set forth in Section 4.25(a) of the Seller Disclosure Schedule, the
Loans are adequately documented and each note evidencing a Loan or loan or
credit agreement or security instrument related to the Loans constitutes a
valid, legal and binding obligation of the obligor thereunder, enforceable in
accordance with the terms thereof, except that enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting enforcement of creditors' rights generally and except that
enforcement thereof may be subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding of law or in equity) and
the availability of equitable remedies. Except as set forth in Section 4.25(a)
of the Seller Disclosure Schedule, there are no oral
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modifications or amendments or additional agreements related to the Loans that
are not reflected in the records of the Seller. Except as set forth in Section
4.25(a) of the Seller Disclosure Schedule, no claims of defense as to the
enforcement of any Loan have been asserted against the Seller for which there is
a reasonable possibility of an adverse determination and the Seller is aware of
no acts or omissions which would give rise to any claim or right of rescission,
set-off, counterclaim or defense for which there is a reasonable possibility of
an adverse determination to the Seller. The Seller currently maintains, and
shall continue to maintain, an allowance for loan losses allocable to the Loans
which is adequate to provide for all known and estimable losses, net of any
recoveries relating to such extensions of credit previously charged off, on the
Loans, such allowance for loan losses complying in all material respects with
all applicable loan loss reserve requirements established in accordance with
GAAP and by any governmental authorities having jurisdiction with respect to the
Seller. Except as set forth in Section 4.25(a) of the Seller Disclosure
Schedule, none of the Loans are presently serviced by third parties and there is
no obligation which could result in any Loan becoming subject to any third party
servicing.
(b) Except as set forth in Section 4.25(b) of the Seller Disclosure
Schedule, as of the date hereof, the Seller is not a party to any written or
oral (a) loan agreement, note or borrowing arrangement (including, without
limitation, leases and credit enhancements) the unpaid principal balance of
which exceeds $50,000 and as to which the obligor is, as of November 30, 1997,
over 90 days delinquent in payment of principal or interest, or (b) Loan with
any director, executive officer or, to the knowledge of the Seller, five percent
stockholder of the Seller or any Affiliate or Associate of any director,
executive officer or five percent stockholder of the Seller. Section 4.25(b) of
the Seller Disclosure Schedule sets forth as of October 31, 1997, (i) all of the
Loans in original principal amount in excess of $50,000 of the Seller that as of
the date of this Agreement are classified by the Seller as "Other Loans
Specially Mentioned", "Special Mentions", "Substandard", "Doubtful", "Loss",
"Classified", "Restructured", "Watch list" or words of similar import, together
with the principal amount of each such Loan and the identity of the obligor
thereunder, and (ii) by category of Loan (i.e., commercial, consumer, etc.), all
of the other Loans of the Seller that as of the date of this Agreement are
classified as such, together with the aggregate principal amount of such Loans
by category. The Seller shall inform Buyer in writing of (a) any Loan the
current principal balance of which exceeds $50,000 that becomes classified in
the manner described in this Section 4.25(b), or (b) any Loan, the current
principal balance of which exceeds $50,000, of which the classification of which
is materially and
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adversely changed at any time after the date of this Agreement, in each case, as
soon as practicable but in any event within fifteen (15) days after the end of
the month during which the change took place.
4.26 CAPITALIZATION. As of the date hereof, without giving effect to the
transactions contemplated hereby, the Seller was (a) "well capitalized", as
defined in the FDIA, and (b) met all capital requirements, standards and ratios
required by each state or federal bank regulator with jurisdiction over the
Seller, including without limitation, any such higher requirement, standard or
ratio as shall apply to institutions engaging in the acquisition of insured
institution deposits, assets or branches, and, except as set forth in the
resolutions included in Section 4.12 of the Seller Disclosure Schedule, no such
regulator has indicated that it will condition any of the regulatory approvals
upon an increase in the Seller's capital or compliance with any special capital
requirement, standard or ratio.
4.27 CRA RATING. The Seller was rated "Outstanding" following its most
recent Community Reinvestment Act examination by the FDIC. The Seller has not
received any notice of and the Seller has no knowledge of any planned or
threatened objection by any community group to the transactions contemplated
hereby.
4.28 YEAR 2000. Section 4.28 of the Seller Disclosure Schedule summarizes
the status of the Seller's dealings and communications with third-party service
providers with respect to ensuring that the Seller's computer systems do not, or
will not following modification thereof, be deficient with respect to formatting
for the Year 2000 Problem and that such third-party service providers and the
Seller's computer systems are, or will be, following modification thereof, in
material compliance with all regulations and trade organization guidelines
concerning the Year 2000 Problem. The Seller has made available to the Buyer
copies of all correspondence between the Seller and its third-party service
providers concerning Year 2000 Problem compliance. Except as set forth in
Section 4.28 of the Seller Disclosure Schedule, the Seller has no other
contracts with, or commitments to, any third-party with respect to its computer
systems. The Seller's software applications which are material to the operations
of the Seller, including the software for its data and item processing
functions, have been licensed and are maintained by third-party service
providers, and the Seller is not aware of any expense that it will incur in
connection with the resolution of any Year 2000 Problem associated with any such
software applications. The Seller is not aware of any inability on the part of
any customer, insurance company or service provider with which the Seller
transacts business to timely remedy their own deficiencies in respect of the
Year 2000 Problem, which inability,
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individually or in the aggregate, reasonably could be expected to have a
Material Adverse Effect on the Seller.
4.29 TRANSACTIONS ONLY IN ORDINARY COURSE. Except as disclosed in
Section 4.29 of the Seller Disclosure Schedule or described in the Seller
Balance Sheet, the Seller and its subsidiaries have engaged in transactions only
in the ordinary course of business for entities engaged in its respective
business.
4.30 SELLER INFORMATION. The information relating to the Seller and its
subsidiaries to be contained in the Seller Proxy Statement as described in
Section 5.04 hereof, to the extent such information is provided in writing by
the Seller, will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make such information not misleading.
4.31 DISCLOSURE. No representation or warranty contained in this
Agreement, and no statement contained in any certificate, list or other writing,
including but not necessarily limited to the Seller Disclosure Schedule,
furnished to the Buyer pursuant to the provisions hereof, to the best knowledge
of the Seller, contains or will contain any untrue statement of a material fact
or omits to state a material fact necessary in order to make the statements
herein or therein not misleading.
4.32 FAIRNESS OPINION. The Seller has received an opinion from Legg
Mason Wood, Walker, Incorporated, dated as of the date hereof, and will use all
commercially reasonable efforts to cause Legg Mason Wood Walker, Incorporated to
deliver an opinion as of the date of the Seller Proxy Statement, each to the
effect that the Conversion Ratio is fair to the stockholders of the Seller from
a financial point of view.
ARTICLE V
COVENANTS OF THE PARTIES
5.01 CONDUCT OF THE BUSINESS OF THE SELLER. During the period from the
date of this Agreement to the Effective Time, the Seller:
(a) shall conduct its business and engage in transactions only in
the ordinary and usual course of business consistent with past practices,
which shall mean (i) conducting its banking and other business in the
ordinary and usual course, (ii) refraining from any of the activities
described in Section 5.01(b) below, (iii) not entering into any material
transactions except in the ordinary and
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usual course of business consistent with past practices and (iv)
complying with the following covenants:
(A) maintaining its corporate existence and good standing;
(B) using all reasonable efforts to maintain and keep its
properties in as good repair and condition in all material respects as
they presently exist, except for ordinary wear and tear and damage due to
casualty;
(C) using all reasonable efforts to maintain in full force and
effect insurance generally comparable in amount and in scope of coverage
to that now maintained by it;
(D) complying with and performing in all material respects its
obligations and duties (y) under contracts, leases and documents relating
to or affecting its assets, properties and business and (z) imposed upon
it by all federal, state and local laws and all rules, regulations and
orders imposed by federal, state or local governmental authorities,
judicial orders, judgments, decrees and similar determinations; and
(E) using all reasonable efforts to preserve its business
organization intact and the goodwill of those having business
relationships with the Seller, to keep available the services of its
officers and employees as a group and to maintain satisfactory
relationships with borrowers, depositors, other customers and others
having business relationships with it;
(b) shall not and shall not permit any of its subsidiaries to,
without the prior written consent of the Buyer:
(i) engage or participate in any material transaction or
incur or sustain any material obligation or liability except in
the ordinary and usual course of its businesses consistent with
past practices;
(ii) offer an interest rate with respect to any deposit
that would constitute such deposit a "brokered deposit" of the
Seller under 12 C.F.R. ss.337.6(a)(l)(ii);
(iii) except in the ordinary and usual course of business
consistent with past practices and in an immaterial aggregate
amount, sell, lease, transfer, assign, encumber or otherwise
dispose of or enter into any contract, agreement or
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understanding to lease, transfer, assign, encumber or dispose of
any of its assets except as set forth in Section 5.01(b)(iii) of
the Seller Disclosure Schedule;
(iv) file any application to open, close or relocate any
branch office;
(v) open, close, relocate, or give any notice (written or
verbal) to customers or governmental authorities or agencies to
open, close or relocate the operations of any branch office; or
(vi) waive any material right, whether in equity or at law,
that it has with respect to any asset, other than loans, except in
the ordinary and usual course of business consistent with past
practice and except as set forth in Section 5.01(e);
(c) shall, at the Buyer's request and expense, use all
reasonable efforts to cooperate with the Buyer with respect to
preparation for the combination and integration of the businesses,
systems and operations of the Buyer Bank and the Seller, and shall confer
on a regular and frequent basis with one or more representatives of the
Buyer to report on operational and related matters;
(d) shall, subject to any restrictions under applicable law or
regulation, promptly notify the Buyer of any emergency or other change in
the normal course of its business or in the operation of its properties
and of any governmental complaints, investigations or hearings (or
communications indicating that the same may be contemplated) if such
emergency, change, complaint, investigation or hearing reasonably could
be expected to have a material effect on the business, results of
operations, financial condition or prospects of the Seller;
(e) shall not make any loan or extend any credit on other than
the Seller's customary terms, conditions and standards other than in
connection with any loan workouts in accordance with applicable law and
consistent with the banking practices of comparably-sized depository
institutions; PROVIDED, HOWEVER, that notwithstanding the foregoing, the
Seller shall not, without the written consent of the Buyer, which shall
not be unreasonably withheld, execute any waiver, release of any right,
or cancellation, compromise or extension of payment or the date of any
debt, loan, loan payment or claim, in excess of $500,000 in any one
instances or
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series of related instances or which would extend the maturity date of
any debt, loan, loan payment or claim beyond two (2) years thereof, make
any loan, advance, commitment to extend credit or any advance which
increases any currently outstanding obligation of any borrower or creates
or would create any new obligation of any borrower, which would result in
aggregate obligations of such borrower to the Seller, direct or indirect,
primary or secondary, absolute or contingent, including obligations if
commitments are honored, in excess of $500,000.
(f) shall not declare or pay any dividends on or make any other
distributions in respect of Seller Common Stock;
(g) shall not adopt or amend (other than amendments required by
applicable law or amendments that reduce amounts payable by it) in any
material respect any Seller Pension Plan, any Seller Benefit Plan or any
Seller Other Plan or enter (or permit any of its subsidiaries to enter)
into any employment, severance or similar contract with any person
(including, without limitation, contracts with management which might
require that payments be made upon the consummation of the transactions
contemplated hereby) or amend any such existing agreements, plans or
contracts to increase any amounts payable thereunder or benefits provided
thereunder, or grant or permit any increase in compensation to any
officer or to its employees as a class or pay any bonus, except as set
forth in Section 5.01(g) of the Seller Disclosure Schedule;
(h) shall not, with respect to itself or any of its subsidiaries,
authorize, recommend, propose or announce an intention to authorize,
recommend or propose, or enter into an agreement with respect to, any
merger, consolidation, purchase and assumption transaction or business
combination (other than the Merger), any acquisition of a material amount
of assets or securities or assumption of liabilities (including deposit
liabilities), any disposition of a material amount of assets or
securities, or any release or relinquishment of any material contract
rights not in the ordinary course of business and consistent with past
practices except as set forth in Section 5.01(e) hereof;
(i) shall not propose or adopt amendments to its, or any of its
subsidiaries, Charter or By-Laws;
(j) shall not issue, deliver or sell any shares (whether original
issuance or from treasury shares) of its capital stock or securities
convertible into or exercisable for shares of its capital
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stock (or permit any of its subsidiaries to issue, deliver or sell any
shares of such subsidiaries' capital stock or securities convertible into
or exercisable for shares of such subsidiaries' capital stock), except
upon the exercise or fulfillment of rights or options issued or existing
pursuant to employee benefit plans, programs or arrangements, all to the
extent outstanding or in existence on the date hereof, and except upon
exercise of the Seller Option, as applicable, or effect any stock split,
reverse stock split, recapitalization, reclassification or similar
transaction or otherwise change its equity capitalization as it existed
on September 30, 1997;
(k) shall not grant, confer or award any options, warrants,
conversion rights or other rights, not existing on the date hereof, to
acquire any shares of its capital stock;
(l) shall not purchase, redeem or otherwise acquire any shares of
its capital stock or any securities convertible into or exercisable for
any shares of its capital stock, except in a fiduciary capacity;
(m) shall not impose, or suffer the imposition, on any share of
capital stock held by it of any material lien, charge, or encumbrance, or
permit any such lien, charge, or encumbrance to exist;
(n) shall not incur, or permit any of its subsidiaries to incur,
any additional debt obligation or other obligation for borrowed money, or
to guaranty any additional debt obligation or other obligation for
borrowed money, except in the ordinary course of business consistent with
past practices, which shall include but not necessarily be limited to
creation of deposit liabilities, Federal Home Loan Bank or Federal
Reserve Board borrowings, purchases of federal funds, sales of
certificates of deposit and entry into repurchase agreements or other
similar arrangements commonly employed by banks;
(o) shall not incur or commit to any capital expenditures or any
obligations or liabilities in connection therewith, other than capital
expenditures and such related obligations or liabilities incurred or
committed to in the ordinary and usual course of business consistent with
past practices, and, in all cases, the Seller agrees to consult with the
Buyer with respect to capital expenditures that individually exceed
$50,000 or cumulatively exceed $200,000;
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(p) shall not change its methods of accounting in effect at
December 31, 1996, except as may be required by changes in GAAP as
concurred in by the Seller's independent auditors, and the Seller shall
not change its fiscal year;
(q) shall file all reports, applications and other documents
required to be filed by it with the FDIC or any other governmental entity
between the date of this Agreement and the Effective Time and shall make
available to the Buyer copies of all such reports promptly after the same
are filed;
(r) shall use all commercially reasonable efforts to improve its
business, results of operations, financial condition and prospects,
consistent with the terms of this Agreement;
(s) shall cooperate with the Buyer with the objective of seeking
appropriate modification or rescission of all formal and informal
supervisory enforcement actions;
(t) shall not take any action which would prevent or impede the
Merger from qualifying (i) for pooling of interests accounting treatment
or (ii) as a reorganization within the meaning of Section 368 of the
Code;
(u) shall not, except as expressly contemplated hereby, and as set
forth in Section 5.01(u) of the Seller Disclosure Schedule, enter into
any contract with any Affiliate;
(v) shall not, except as set forth in Section 5.01(e) hereof, and
except for transactions in the ordinary course of business consistent
with past practice, enter into or terminate any material contract or
agreement, or make any changes in any of its material leases or
contracts, other than renewals of contracts and, subject to the
provisions of Section 5.16 hereof, leases without material adverse change
of terms;
(w) shall not, other than in prior consultation with the other
party to this Agreement, restructure or materially change its investment
securities portfolio or its gap position through purchases, sales or
otherwise, or the manner in which the portfolio is classified or
reported; and
(x) shall not agree, in writing or otherwise, to take any of the
foregoing actions or any action which would make any of its
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representations or warranties contained herein untrue or incorrect in any
material respect.
5.02 COVENANTS OF THE BUYER. During the period from the date of this
Agreement and continuing until the Effective Time, except as expressly
contemplated or permitted by this Agreement, the Buyer shall not, and shall not
permit any of its Significant Subsidiaries to take any action which would
prevent or impede the Merger from qualifying (i) for pooling of interests
treatment and (ii) as a reorganization within the meaning of Section 368 of the
Code.
5.03 ACCESS TO PROPERTIES AND RECORDS; CONFIDENTIALITY.
(a) The Seller shall permit the Buyer reasonable access to its
properties, and shall disclose and make available to the Buyer all
Records, including all books, papers and records relating to the assets,
stock ownership, properties, operations, obligations and liabilities of
the Seller, including, but not limited to, all books of account
(including the general ledger), tax records, minute books of directors
and stockholders meetings, organizational documents, By-Laws, material
contracts and agreements, filings with any regulatory authority,
accountants' work papers, litigation files, plans affecting employees,
and any other business activities or prospects in which the Buyer may
reasonably have an interest in light of the transactions contemplated
hereby. The Seller shall make arrangements with each third party provider
of services to the Seller to permit the Buyer reasonable access to all of
the Seller's Records held by each such third party. The Buyer shall
permit the Seller reasonable access to such properties and records of the
Buyer and/or its subsidiaries in which the Seller may reasonably have an
interest in light of the transactions contemplated hereby. Neither the
Buyer nor the Seller nor any of their respective subsidiaries shall be
required to provide access to or to disclose information where such
access or disclosure would violate or prejudice the rights of any
customer, would jeopardize the attorney-client privilege of the
institution in possession or control of such information, or would
contravene any law, rule, regulation, order, judgment, decree or binding
agreement. The parties will use all reasonable efforts to make
appropriate substitute disclosure arrangements under circumstances in
which the restrictions of the preceding sentence apply.
(b) All Confidential Information furnished by each party hereto to
the other, or to any of its Affiliates, directors, officers,
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employees, representatives or agents (such persons being collectively
referred to herein as "REPRESENTATIVES"), shall be treated as the sole
property of the party furnishing the information until consummation of
the transactions contemplated hereby, and, if such transactions shall not
occur, the party receiving the information, or any of its Affiliates or
Representatives, as the case may be, shall return to the party which
furnished such information all documents or other materials containing,
reflecting or referring to such information, shall keep confidential all
such information for the period hereinafter referred to, and shall not
directly or indirectly at any time use such information for any
competitive or other commercial purpose; PROVIDED, HOWEVER, that the
Buyer and its Affiliates shall be permitted to retain and share with
their regulators, examiners and auditors (who need to know such
information and are informed of the confidential nature thereof and
directed to treat such information confidentially) such materials, files
and information relating to or constituting the Buyer's or any of its
Affiliate's or Representatives' work product, presentations or evaluation
materials as the Buyer deems reasonably necessary or advisable in
connection with auditing or examination purposes. The obligation to keep
such information confidential shall continue for two (2) years from the
date this Agreement is terminated. In the event that either party or its
affiliates or Representatives are requested or required in the context of
a litigation, governmental, judicial or regulatory investigation or other
similar proceeding (by oral questions, interrogatories, requests for
information or documents, subpoenas, civil investigative demands or
similar process) to disclose any Confidential Information, the party or
its affiliate or its Representative so requested or required will
directly or through the party of such affiliate or Representative, if
practicable and legally permitted, prior to providing such information,
and as promptly as practicable after receiving such request, provide the
other party with notice of each such request or requirement so that the
other party may seek an appropriate protective order or other remedy or,
if appropriate, waive compliance with the provisions of this Agreement.
If, in the absence of a protective order or the receipt of a waiver
hereunder, the party or affiliate or Representative so requested or
required is, in the written opinion of its counsel, legally required to
disclose Confidential Information to any tribunal, governmental or
regulatory authority, or similar body, the party or affiliate or
Representative so required may disclose that portion of the Confidential
Information which it is advised in writing by such counsel it is legally
required to so disclose to such tribunal or
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authority or similar body without liability to the other party hereto for
such disclosure. The parties and their Affiliates and Representatives
will exercise reasonable efforts to obtain assurance that confidential
treatment will be accorded the information so disclosed.
As used in this Section 5.03(b), "CONFIDENTIAL INFORMATION" means all
data, reports, interpretations, forecasts and records (whether in written form,
electronically stored or otherwise) containing or otherwise reflecting
information concerning the disclosing party or its Affiliates which is not
available to the general public and which the disclosing party or any affiliate
or any of their respective Representatives provides or has previously provided
to the receiving party or to the receiving party's Affiliates or Representatives
at any time in connection with the transactions contemplated by this Agreement,
including but not limited to any information obtained by meeting with
Representatives of the disclosing party or its Affiliates, together with
summaries, analyses, extracts, compilations, studies, personal notes or other
documents or records, whether prepared by the receiving party or others, which
contain or otherwise reflect such information. Notwithstanding the foregoing,
the following information will not constitute "CONFIDENTIAL INFORMATION": (i)
information that is or becomes generally available to the public other than as a
result of a disclosure by the receiving party or any affiliate or Representative
of the receiving party, (ii) information that was previously known to the
receiving party or its Affiliates or Representatives on a nonconfidential basis
prior to its disclosure by the disclosing party, its Affiliates or
Representatives, (iii) information that became or becomes available to the
receiving party or any affiliate or Representative thereof on a nonconfidential
basis from a source other than the disclosing party or any affiliate or
Representatives of the disclosing party, provided that such source is not known
by the disclosing party or its Affiliates or Representatives to be subject to
any confidentiality agreement or other legal restriction on disclosing such
information and (iv) information that has been independently acquired or
developed by the receiving party or its Affiliates or Representatives without
violating the obligation's of this Section 5.03(b).
5.04 NO SOLICITATION. Unless and until this Agreement shall have been
properly terminated by either party pursuant to Section 8.01 hereof, neither the
Seller nor any of its subsidiaries or Affiliates shall (and the Seller shall use
its best efforts to cause its Representatives, including, but not limited to,
investment bankers, attorneys and accountants, not to), directly or indirectly,
encourage, solicit, initiate or participate in any discussions or negotiations
with, or, provide any information to, any
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corporation, partnership, person or other entity or group (other than the Buyer
and its Affiliates or Representatives) concerning any merger, tender offer, sale
of substantial assets, sale of shares of capital stock or debt securities or
similar transaction involving the Seller (an "ACQUISITION TRANSACTION").
Notwithstanding the foregoing, nothing contained in this Section 5.04 shall
prohibit the Seller or its Board of Directors from taking and disclosing to the
Seller's stockholders a position with respect to a tender offer by a third party
pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from
making such disclosure to the Seller's stockholders which, in the judgment of
the Board of Directors with the written advice of outside counsel, may be
required under applicable law. The Seller will promptly communicate to the Buyer
the terms of any proposal, discussion, negotiation or inquiry relating to an
Acquisition Transaction and the identity of the party making such proposal or
inquiry which it may receive in respect of any such transaction (which shall
mean that any such communication shall be delivered no less promptly than by
telephone within 24 hours of the Seller's receipt of any such proposal or
inquiry) or its receipt of any request for information from the Federal Reserve
Board, the DOJ, or any other governmental agency or authority with respect to a
proposed Acquisition Transaction.
5.05 REGULATORY MATTERS; CONSENTS.
(a) The Buyer and the Seller shall promptly prepare and file with
the SEC and the FDIC a proxy statement in definitive form relating to the
meeting of the Seller's stockholders to be held in connection with this
Agreement and the transactions contemplated hereby (the "SELLER PROXY
STATEMENT") and the Buyer shall promptly prepare and file with the SEC
and the FDIC a registration statement on Form S-4 (the "S-4") in which
the Seller Proxy Statement will be included as a prospectus. Each of the
Buyer and the Seller shall use all reasonable efforts to have the S-4
declared effective under the Securities Act as promptly as practicable
after such filing, and the Seller shall thereafter mail the Seller Proxy
Statement to the Seller's stockholders. The Buyer shall also use all
reasonable efforts to obtain all necessary state securities law or "Blue
Sky" permits and approvals required to carry out the transactions
contemplated by this Agreement, and the Seller shall furnish all
information concerning the Seller and the holders of the Seller Common
Stock as may be reasonably requested in connection with any such action.
(b) The Seller and the Buyer shall have the right to review in
advance, and to the extent practicable each will consult the other
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on, in each case subject to applicable laws relating to the exchange of
information, all the information relating to the Seller or the Buyer, as
the case may be, and any of their respective subsidiaries and Affiliates,
which appear in the Seller Proxy Statement, any filing made with, or
written materials submitted to, any third party or any government
regulatory body, department, agency or authority in connection with the
transactions contemplated by this Agreement. In exercising the foregoing
right, each of the parties hereto shall act reasonably and as promptly as
practicable. The parties hereto agree that they will consult with each
other with respect to the obtaining of all permits, consents, approvals
and authorizations of all third parties and government regulatory bodies,
departments, agencies or authorities necessary or advisable to consummate
the transactions contemplated by this Agreement, and each party will keep
the other apprised of the status of matters relating to completion of the
transactions contemplated herein and therein. Without limiting the scope
of the immediately preceding sentence, the Buyer shall provide the
Seller's counsel with copies of the nonconfidential portions of filings
submitted to and related correspondence with any governmental regulatory
body whose consent or approval is necessary to consummate the Merger.
(c) The Buyer and the Seller shall, upon request, furnish each
other with all information concerning themselves, their subsidiaries,
directors, officers and stockholders and such other matters as may be
reasonably necessary or advisable in connection with the Seller Proxy
Statement or any other statement, filing, notice or application made by
or on behalf of the Buyer, the Seller or any of their respective
subsidiaries to any governmental regulatory body, department, agency or
authority in connection with the Merger and the other transactions
contemplated by this Agreement.
(d) Each of the Seller and the Buyer will cooperate with the other
and use all reasonable efforts to prepare all necessary documentation, to
obtain all necessary permits, consents, approvals and authorizations of
all third parties and governmental bodies necessary to consummate the
transactions contemplated by this Agreement.
5.06 APPROVAL OF STOCKHOLDERS. The Seller will (a) as promptly as
practicable, take all steps necessary to duly call, give notice of, convene and
hold a meeting of its stockholders for the purpose of approving this Agreement
and the Merger, and for such other purposes as may be
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necessary or desirable, (b) recommend to its stockholders the approval of the
aforementioned matters to be submitted by it to its stockholders, except as
required by the fiduciary duties of the Seller's Board of Directors (as
determined in good faith and as advised in writing by the Seller's counsel), and
(c) cooperate and consult with the Buyer with respect to each of the foregoing
matters.
5.07 AGREEMENTS OF SELLER'S AFFILIATES. The Seller shall identify in a
letter to the Buyer, after consultation with counsel, all persons who, at the
time of the meeting of its stockholders referred to in Section 5.05 hereof, it
believes may be deemed to be "affiliates" of the Seller, as that term is defined
for purposes of paragraphs (c) and (d) of Rule 145 under the Securities Act
and/or as used in and for purposes of Accounting Series Releases 130 and 135, as
amended, of the SEC (the "SELLER AFFILIATES"). The Seller shall use all
reasonable efforts to cause each person who is identified as a Seller Affiliate
in the letter referred to above to deliver to the Buyer at least forty (40) days
prior to the Effective Time an executed copy of the Seller Affiliates Agreement.
Prior to the Effective Time, the Seller shall amend and supplement such letter
and use all reasonable efforts to cause each additional person who is identified
as a Seller Affiliate to execute a copy of the Seller Affiliates Agreement.
Within thirty (30) days after the end of the first fiscal quarter of the Buyer
ending at least thirty (30) days after the Effective Time, the Buyer will
publish results including at least thirty (30) days of combined operations of
the Buyer and the Seller as referred to in the Seller Affiliates Letter as
contemplated by and in accordance with SEC Accounting Series Release No. 135.
5.08 FURTHER ASSURANCES. Subject to the terms and conditions herein
provided, each of the parties hereto agrees to use all reasonable efforts to, as
promptly as practicable, take, or cause to be taken, all actions and to do, or
cause to be done, all things necessary, proper or advisable under applicable
laws and regulations to consummate and make effective the transactions
contemplated by this Agreement or to vest the Buyer Bank with full title to all
properties, assets, rights, approvals, immunities and franchises of the Seller.
In case at any time after the Effective Time any further action is necessary or
desirable to carry out the purposes of this Agreement or to vest the Buyer Bank
with full title to all properties, assets, rights, approvals, immunities and
franchises of the Seller, the proper officers and directors of each party to
this Agreement shall take all such necessary action.
5.09 PUBLIC ANNOUNCEMENTS. From the date of this Agreement to the Closing
Date, neither of the parties hereto shall make or send a Public
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Announcement unless the other party shall have first been afforded reasonable
opportunity to review and comment on the text of such Public Announcement prior
to the delivery of the same; PROVIDED, HOWEVER, that nothing in this Section
shall prohibit any party hereto from making any Public Announcement which its
legal counsel deems necessary under law, if it makes a good faith effort to
obtain the other party's comment on the text of the Public Announcement before
making it public.
5.10 TAX-FREE REORGANIZATION TREATMENT. Neither the Buyer nor the Seller
shall intentionally take or cause to be taken any action, whether before or
after the Effective Time, which reasonably could be expected to disqualify the
Merger as a "reorganization" within the meaning of Section 368(a) of the Code;
PROVIDED, HOWEVER, that nothing herein shall limit the ability of the Buyer to
exercise its rights under the Seller Option Agreement.
5.11 POST-CLOSING GOVERNANCE. From and after the Effective Time, the
Board of Directors of the Buyer shall be expanded by one member and James F.
Drew shall be appointed as a director of the Buyer. From and after the Effective
Time, the Board of Directors of the Surviving Bank shall consist of those
persons comprising the Board of Directors of the Buyer Bank prior to the
Effective Time, each to hold office in accordance with the Articles of
Organization and By-Laws of the Surviving Bank; PROVIDED, HOWEVER, that the
Board of Directors of the Buyer Bank shall be expanded by one member and
Nicholas P. Salerno shall be appointed to serve as a director of the Buyer Bank
after the Effective Time. At the Effective Time, the officers of the Surviving
Bank shall consist of those persons who were officers of the Buyer Bank
immediately prior to the Effective Time, subject to the rights of the Buyer as
the sole stockholder of the Buyer Bank, each to hold office in accordance with
the Articles of Organization and By-Laws of the Surviving Bank.
5.12 STOCK EXCHANGE LISTING. Buyer shall use all reasonable efforts to
cause the shares of Buyer Common Stock to be issued in connection with the
Merger to be approved for listing on the NASDAQ, subject to official notice of
issuance, as of or prior to the Effective Time.
5.13 EMPLOYMENT AND BENEFIT MATTERS. (a) The Buyer agrees to provide the
employees of the Seller (the "SELLER EMPLOYEES") who remain employed after the
Closing Date (collectively, the "TRANSFERRED SELLER EMPLOYEES") with the types
and levels of employee benefits maintained by the Buyer for similarly situated
employees of the Buyer or the Buyer Bank. As soon as administratively
practicable after the Effective Time, the Buyer shall permit the Seller
Employees to participate in the Buyer's
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group hospitalization, medical, life and disability insurance plans, defined
benefit pension plan, thrift plan, severance plan and similar plans, on the same
terms and conditions as applicable to comparable employees of the Buyer and the
Buyer Bank (including the waiver of pre-existing conditions, restrictions,
exclusions or limitations), giving Seller Employees full credit for all "years
of service," as that term is defined in Section 411(a)(5) of the Code, with the
Seller and its subsidiaries (to the extent the Seller gave effect) as if such
service was with the Buyer, for purposes of eligibility, vesting and calculation
of benefits under vacation, severance and other plans, but not for benefit
accrual purposes under the Buyer defined benefit pension plan.
(b) COMPENSATION ARRANGEMENTS. Following the Effective Time, the
Buyer shall honor and shall cause the Buyer Bank to honor in accordance with
their terms all individual employment and other compensation agreements existing
prior to the execution of this Agreement, which are between the Seller and any
current or former director, officer or employee thereof, and which have been
disclosed in the Seller Disclosure Schedule, and the Buyer will not, and will
not cause any of its subsidiaries to, challenge the validity of any obligation
of the Seller under any employment, consulting, supplemental retirement or other
compensation, contract or arrangement with any current or former director,
officer or employee of the Seller, provided such contract or arrangement was set
forth in the Seller Disclosure Schedule.
(c) CONTINUATION OF PLANS. Notwithstanding anything to the
contrary contained herein, the Buyer shall have sole discretion with respect to
the determination as to whether to terminate, merge or continue any employee
benefit plans and programs of the Seller to the extent permitted by and in
accordance with the terms of such plans and programs; PROVIDED, HOWEVER, that
the Buyer shall continue to maintain the Seller plans (other than stock based or
incentive plans) until the Seller Employees are permitted to participate in the
Buyer's plans in accordance with this Section 5.13(c). Nothing in this Agreement
shall alter or limit the Buyer's obligations, if any, under ERISA, as amended by
the Consolidated Omnibus Budget Reconciliation Act of 1985 and/or the Health
Insurance Portability and Accountability Act of 1996 with respect to the rights
of Seller Employees and their qualified beneficiaries in connection with the
group health plan maintained by the Seller as of the Effective Time.
5.14 AUDITOR'S LETTERS. The Seller shall use all reasonable efforts to
cause to be delivered to the Buyer letters from its independent auditors dated
the date on which the S-4 referred to in Section 5.05(a) hereof or
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last amendment thereto shall become effective, and dated the Closing Date, and
addressed to the Buyer and the Seller, with respect to the Seller's consolidated
financial position and the results of operations, which letters shall be based
on SAS 72 and certain agreed-upon procedures, which procedures shall be
consistent with applicable professional standards for letters delivered by
independent auditors in connection with comparable transactions, and each in
form and substance which is reasonably satisfactory to the Buyer.
5.15. MAINTENANCE OF RECORDS. Through the Effective Time, the Seller will
maintain the Records in the same manner and with the same care that the Records
have been maintained prior to the execution of this Agreement. The Buyer may, at
its own expense, make such copies of and excerpts from the Records as it may
deem desirable. All Records, whether held by the Buyer or the Seller, shall be
maintained for such periods as are required by law, unless the parties shall,
applicable law permitting, agree in writing to a different period.
5.16 LEASES. Between the date hereof and the Closing Date, the Seller
shall use all commercially reasonable efforts to promptly obtain the consent of
the landlord to the transactions contemplated hereby under the lease set forth
in Section 4.04 of the Seller Disclosure Schedule and the Buyer will cooperate
with the Seller in obtaining such consent. The Seller shall consult with the
Buyer before renewing or extending any material lease of the Seller of real
property or material lease relating to furniture, fixtures or equipment that is
currently in effect but that would otherwise expire on or prior to the Effective
Time. The Seller shall not cancel, terminate or take other action that is likely
to result in any cancellation or termination of any such lease without prior
written notice to the Buyer.
5.17 ADVICE OF CHANGES. The Seller shall promptly advise the Buyer of any
change or event having a Material Adverse Effect on it or which it believes
would or would be reasonably likely to cause or constitute a material breach of
any of its representations, warranties or covenants contained herein. From time
to time prior to the Effective Time, each party will promptly supplement or
amend the Disclosure Schedules delivered in connection with the execution of
this Agreement to reflect any matter which, if existing, occurring or known at
the date of this Agreement, would have been required to be set forth or
described in such Disclosure Schedules or which is necessary to correct any
information in such Disclosure Schedules which has been rendered inaccurate
thereby. All supplements or amendments to such Disclosure Schedules pursuant to
and in accordance with this Section 5.17 shall be treated as having been part of
such Disclosure Schedule as of the date
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hereof for the purpose of determining satisfaction of the conditions set forth
in Sections 6.02(a) or 6.03(a) hereof, as the case may be; except with respect
to matters which individually or in the aggregate have a Material Adverse Effect
on the party amending such Disclosure Schedule. No supplement or amendment to
such Disclosure Schedule shall have any effect for the purpose of determining
the compliance by the Seller with the covenants set forth in Sections 5.01. In
addition to the foregoing, prior to the Closing Date, the Seller will deliver to
the Buyer an updated attorney response to a recent request of the independent
auditors for the Seller and its subsidiaries with respect to Litigation and will
make available any documents which come into its possession after the date
hereof related to the matter referred to in Section 4.09(b) of the Seller
Disclosure Schedule.
5.18 CONVERSION OF SELLER STOCK OPTIONS. At the Effective Time, all
rights with respect to Seller Common Stock pursuant to stock options granted by
the Seller under any currently existing Seller Stock Option Plans shall be
converted into corresponding rights to purchase shares of Buyer Common Stock in
accordance with the applicable provisions of Article II hereof.
5.19 DIRECTORS' AND OFFICERS' INDEMNIFICATION AND INSURANCE.
(a) After the Effective Time, the Buyer shall honor the
indemnification provisions for officers and directors currently set forth in the
Articles of Organization (or charter or other organizational documents) and
By-Laws of the Seller and its subsidiaries with respect to acts and omissions
taken prior to the Effective Time by such officers and directors, but only to
the extent permitted by federal and Massachusetts law and regulations.
(b) The Buyer shall maintain the Seller's (including its
subsidiaries') existing directors' and officers' liability insurance (the "D&O
INSURANCE") covering persons who are currently covered by the Seller's D&O
Insurance for a period of six (6) years after the Effective Time on terms no
less favorable than those in effect on the date hereof and shall, on the Closing
Date, provide evidence of such extension of coverage to the Seller; PROVIDED,
HOWEVER, that the Buyer may substitute therefor policies providing at least
comparable coverage and containing terms and conditions no less favorable than
those in effect on the date hereof.
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ARTICLE VI
CLOSING CONDITIONS
6.01 CONDITIONS TO EACH PARTY'S OBLIGATIONS UNDER THIS AGREEMENT. The
respective obligations of each party under this Agreement shall be subject to
the fulfillment at or prior to the Effective Time of the following conditions,
none of which may be waived:
(a) STOCKHOLDER'S APPROVAL. This Agreement and the transactions
contemplated hereby shall have been approved by the affirmative vote of
the holders of at least two-thirds of the outstanding shares of Seller
Common Stock or such greater number as may be required pursuant to the
Charter of the Seller in accordance with applicable law.
(b) GOVERNMENTAL CONSENTS. All authorizations, consents, orders or
approvals of, or declarations or filings with, and all expirations of
waiting periods imposed by, any governmental or regulatory authority or
agency (all of the foregoing being referred to as "CONSENTS") which are
necessary for the consummation of the Merger shall have been filed,
occurred or been obtained (all such authorizations, orders, declarations,
approvals, filings and consents and the lapse of all such waiting periods
being referred to as the "REQUISITE REGULATORY APPROVALS") and all such
Requisite Regulatory Approvals shall be in full force and effect.
(c) S-4. The S-4 shall have become effective under the Securities
Act and shall not be subject to a stop order or a threatened stop order.
(d) NO INJUNCTIONS OR RESTRAINTS. No temporary restraining order,
preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition (an
"INJUNCTION") preventing the consummation of the Merger shall be in
effect.
(e) ACCOUNTING TREATMENT. Buyer shall have received a letter from
Arthur Andersen LLP and Seller shall have received a letter from Wolf &
Company, P.C., each dated the date of the Closing, substantially to the
effect that, on the basis of a review of the Agreement and the
transactions contemplated hereby, in such accountants' opinion,
Accounting Principles Board Opinion No. 16 provides that the Merger may
be accounted for as a pooling of interests.
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6.02 CONDITIONS TO THE OBLIGATIONS OF THE BUYER UNDER THIS AGREEMENT.
The obligations of the Buyer under this Agreement shall be further subject to
the satisfaction or waiver by the Buyer, at or prior to the Effective Time, of
the following conditions:
(a) ABSENCE OF MATERIAL ADVERSE CHANGES. There shall not have
occurred any change in the business, assets, financial condition, results
of operations or prospects of the Seller or any of its subsidiaries which
has had, or is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on the Seller or any of its
subsidiaries.
(b) REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF OBLIGATIONS.
(i) The obligations of the Seller required to be performed by it at or
prior to the Closing pursuant to the terms of this Agreement shall have
been duly performed and complied with in all material respects, (ii)
there shall be no shares of Seller Common Stock or other Seller
securities issued and outstanding immediately prior to the Effective Time
other than (x) the 16,651,602 shares of Seller Common Stock outstanding
on the date hereof, (y) up to 570,750 shares of Seller Common Stock
issuable upon the exercise of Seller stock options disclosed in Section
4.02(a) of the Seller Disclosure Schedule, and (z) any shares of Seller
Common Stock issued upon the exercise of the Seller Option, and (iii)
except as provided in the immediately preceding clause (ii), the
representations and warranties of the Seller contained in this Agreement
shall be true and correct in all material respects as of the date of this
Agreement and as of the Effective Time as though made at and as of the
Effective Time (except as otherwise specifically contemplated by this
Agreement and except as to any representation or warranty which
specifically relates to an earlier date); PROVIDED, HOWEVER, that for
purposes of determining the satisfaction of the conditions contained in
clause (iii) of this paragraph (b), no effect shall be given to any
exception in such representations and warranties relating to materiality
or the existence of a Material Adverse Effect and, PROVIDED FURTHER,
HOWEVER, that for purposes of clause (ii) of this paragraph (b), such
representations and warranties shall be deemed to be true and correct in
all material respects unless the failure or failures of such
representations and warranties to be so true and correct, in the
aggregate, represents a material adverse change to the business, assets,
financial condition or results of operations of the Seller. The Buyer
shall have received a certificate to the foregoing effect signed
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by the chairman or president and the chief financial officer or chief
accounting officer of the Seller.
(c) THIRD-PARTY APPROVALS. Any and all permits, consents, waivers,
clearances, approvals and authorizations of all non-governmental and
non-regulatory third parties which are necessary in connection with the
consummation of the transactions contemplated by this Agreement and are
required to be received or obtained by the Seller, shall have been
obtained by the Seller.
(d) BURDENSOME CONDITION. There shall not be any action taken, or
any statute, rule, regulation or order enacted, entered, enforced or
deemed applicable to the Merger, the Buyer or the Buyer Bank after the
Effective Time, by any federal or state governmental agency or authority
which, in connection with the granting of any Consent or Requisite
Regulatory Approval necessary to consummate the Merger or otherwise,
imposes any condition or restriction upon the Buyer, any subsidiary of
the Buyer or the Seller after the Merger (including, without limitation,
requirements relating to the disposition of assets or limitations on
interest rates), which would so materially adversely impact the economic
or business benefits of the transactions contemplated by this Agreement
as to render inadvisable in the reasonable judgment of the Buyer the
consummation of the Merger.
(e) TAX LETTER RULING. The Buyer shall have (i) obtained a letter
ruling from the IRS substantially to the effect that for federal income
tax purposes the Merger constitutes a reorganization as described in
Section 368(a) of the Code or (ii) if, on the date the last Requisite
Regulatory Approval is received, the letter ruling referred to in clause
(i) shall not have been received, the Buyer shall have received an
opinion, dated the date of the Closing from its counsel, Bingham Dana LLP
or other counsel acceptable to the Buyer and the Seller, substantially to
the effect that, on the basis of facts and representations set forth
therein, or set forth in writing elsewhere and referred to therein, for
federal income tax purposes the Merger constitutes a reorganization as
described in Section 368(a) of the Code and addressing such other
substantial federal income tax effects of the Merger as the Buyer may
reasonably require and which are customary in transactions of a like
character; PROVIDED, HOWEVER, that if, on the date that the last
Requisite Regulatory Approval is received, the letter ruling referred to
in clause (i) shall not have been received and Bingham Dana LLP has
advised the Buyer that it is unable to deliver the tax opinion referred
to in
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clause (ii), and all other conditions to closing set forth in this
Article VI have been satisfied, the Buyer and the Seller shall cooperate
and use reasonable efforts to take all steps necessary to alter the
structure of the transactions contemplated by this Agreement to ensure
that for federal income tax purposes the transactions contemplated by
this Agreement shall constitute a reorganization as described in Section
368(a) of the Code and, in such event, either the Buyer or the Seller
shall, upon written notice to the other party hereto, have the right to
extend the Termination Date until October 31, 1998 provided that such
party is not in material breach of this Agreement or the Stock Option
Agreement. In rendering any such opinion, such counsel may rely, to the
extent they deem necessary or appropriate, upon opinions of other counsel
and upon representations of an officer or officers of the Seller and the
Buyer or any of their Affiliates.
(f) SELLER AFFILIATES AGREEMENTS. The Seller shall have delivered
to the Buyer the letter pertaining to the Seller Affiliates, as
contemplated under Section 5.06 above, and each of the executed Seller
Affiliates Agreements that have been received by the Seller as of the
Effective Time.
(g) TERMINATION OF SELLER PLANS. If requested by the Buyer, the
Seller shall have terminated all Seller Other Plans set forth on
Schedule 6.02(g) hereof.
6.03 CONDITIONS TO THE OBLIGATIONS OF THE SELLER UNDER THIS AGREEMENT.
The obligations of the Seller under this Agreement shall be further subject to
the satisfaction or waiver by the Seller, at or prior to the Effective Time, of
the following conditions:
(a) REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF OBLIGATIONS.
The obligations of the Buyer required to be performed by it at or prior
to the Closing pursuant to the terms of this Agreement shall have been
duly performed and complied with in all material respects and the
representations and warranties of the Buyer contained in this Agreement
shall be true and correct in all material respects as of the date of this
Agreement and as of the Effective Time as though made at and as of the
Effective Time (except as otherwise specifically contemplated by this
Agreement and except as to any representation or warranty which
specifically relates to an earlier date) and the Seller shall have
received a certificate to that effect signed by the chairman or president
and the chief financial officer or chief accounting officer of the Buyer.
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(b) THIRD-PARTY APPROVALS. Any and all permits, consents, waivers,
clearances, approvals and authorizations of all non-governmental and
non-regulatory third parties which are necessary in connection with the
consummation of the transactions contemplated by this Agreement and are
required to be received or obtained by the Buyer, shall have been
obtained by the Buyer, other than permits, consents, waivers, clearances,
approvals and authorizations the failure of which to obtain would neither
make it impossible to consummate the Merger nor result in a Material
Adverse Effect on the Buyer (on a consolidated basis with the Seller)
after the Merger.
(c) TAX OPINION. The Seller shall have received an opinion, dated
the dates of the Proxy Statement and the Closing from Nutter, McClennen &
Fish, LLP or other tax advisor acceptable to the Buyer and the Seller,
substantially to the effect that, on the basis of facts and
representations set forth therein, or set forth in writing elsewhere and
referred to therein, for federal income tax purposes the Merger
constitutes a reorganization as described in Section 368(a) of the Code
and that no gain or loss will be recognized by the stockholders of the
Seller upon the receipt, pursuant to this Agreement, of Buyer Common
Stock solely in exchange for Seller Common Stock (it being understood
that such opinion will not extend to cash received in lieu of fractional
share interests or cash received by Dissenting Holders, if any) and in
respect of such other substantial federal income tax effects of the
Merger as the Seller may reasonably require and which are customary in
transactions of a like character. In rendering any such opinion, such
advisor may rely, to the extent they deem necessary or appropriate, upon
opinions of other advisors and upon representations of an officer or
officers of the Seller and the Buyer or any of their Affiliates.
(d) NASDAQ LISTING. The shares of Buyer Common Stock issuable to
Seller's stockholders pursuant to this Agreement shall have been
authorized for listing on NASDAQ upon official notice of issuance.
ARTICLE VII
CLOSING
7.01 TIME AND PLACE. Subject to the provisions of Articles VI and VIII
hereof, the Closing of the transactions contemplated hereby shall take place at
the Boston, Massachusetts offices of Bingham Dana LLP at
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10:00 A.M., local time, on the first business day after the date on which all of
the conditions contained in Article VI are satisfied or waived; or at such other
place, at such other time, or on such other date as the Seller and the Buyer may
mutually agree upon for the Closing to take place.
7.02 DELIVERIES AT THE CLOSING. Subject to the provisions of
Articles VI and VIII hereof, at the Closing there shall be delivered to the
Seller and the Buyer, the opinions, certificates, and other documents and
instruments required to be delivered under Article VI hereof.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
8.01 TERMINATION. This Agreement may be terminated at any time prior to
the Effective Time, whether before or after approval of this Agreement and the
transactions contemplated hereby by the Seller's stockholders:
(a) by mutual written consent of the Seller and the Buyer
authorized by their respective Boards of Directors;
(b) by the Seller or the Buyer if the Effective Time shall not
have occurred on or prior to August 31, 1998 (the "TERMINATION DATE") or
such later date as shall have been agreed to in writing by the Buyer and
the Seller;
(c) by the Buyer or the Seller if any governmental or regulatory
authority or agency, or court of competent jurisdiction, shall have
issued a final permanent order or Injunction enjoining, denying approval
of, or otherwise prohibiting the consummation of the Merger and the time
for appeal or petition for reconsideration of such order or Injunction
shall have expired without such appeal or petition being granted; or
(d) by the Buyer or the Seller (provided that the terminating
party is not then in material breach of any representation, warranty or
covenant or other agreement contained herein or in the Seller Option
Agreement) if the approval of the Seller's stockholders specified in
Section 5.05 shall not have been obtained by reason of the failure to
obtain the required vote at a duly held meeting of the Seller's
stockholders or at any adjournment thereof; or
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(e) by the Board of Directors of the Buyer or the Board of
Directors of the Seller (provided that the terminating party is not then
in material breach of any representation, warranty, covenant or other
agreement contained herein or in the Seller Option Agreement), in the
event of a material breach by the other party of any representation,
warranty, covenant or other agreement contained herein or in the Seller
Option Agreement which breach is not cured after twenty (20) days written
notice thereof is given to the party committing such breach.
8.02 EFFECT OF TERMINATION. In the event of termination of this
Agreement by either the Seller or the Buyer as provided above, this Agreement
shall forthwith become null and void (other than Sections 5.02(b) and 9.01
hereof, which shall remain in full force and effect) and there shall be no
further liability on the part of the Seller or the Buyer or their respective
officers or directors to the other, except (i) any liability of the Seller and
the Buyer under said Sections 5.02(b) and 9.01, (ii) that the Seller Option
Agreement shall be governed by its own terms as to termination, and (iii) in the
event of a willful breach of any representation, warranty, covenant or agreement
contained in this Agreement, in which case, the breaching party shall remain
liable for any and all damages, costs and expenses, including all reasonable
attorneys' fees, sustained or incurred by the non-breaching party as a result
thereof or in connection therewith or with the enforcement of its rights
hereunder.
8.03 AMENDMENT, EXTENSION AND WAIVER. Subject to applicable law and as
may be authorized by their respective Boards of Directors, at any time prior to
the consummation of the transactions contemplated by this Agreement or
termination of this Agreement in accordance with the provisions of Section 8.01
hereof, whether before or after approval thereof by the stockholders of the
Seller, the Buyer and the Seller may, (a) amend this Agreement, (b) extend the
time for the performance of any of the obligations or other acts of any other
party hereto, (c) waive any inaccuracies in the representations and warranties
contained herein or in any document delivered pursuant hereto, or (d) waive
compliance with any of the agreements or conditions contained in Articles V and
VI (other than Section 6.01) hereof; PROVIDED, HOWEVER, that after any approval
of the transactions contemplated by this Agreement by the Seller's stockholders,
there may not be, without further approval of such stockholders, any amendment,
extension or waiver of this Agreement which reduces the amount or changes the
form of the consideration to be delivered to the stockholders of the Seller
hereunder other than as contemplated by this Agreement. This Agreement may not
be amended except by an instrument in writing signed on behalf of each of the
parties
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hereto. Any agreement on the part of a party hereto to any extension or waiver
shall be valid only if set forth in an instrument in writing signed on behalf of
such party, but such waiver or failure to insist on strict compliance with such
obligation, covenant, agreement or condition shall not operate as a waiver of,
or estoppel with respect to, any subsequent or other failure.
ARTICLE IX
MISCELLANEOUS
9.01 EXPENSES. Except as may otherwise be agreed to hereunder or in
other writing by the parties, all legal and other costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such costs and expenses; PROVIDED, HOWEVER, that all
costs and expenses incurred in connection with the printing and mailing of the
S-4 and the Seller Proxy Statement shall be borne equally by the Buyer and the
Seller.
9.02 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. None of the
representations, warranties, covenants and agreements of the Seller or the Buyer
shall survive after the Effective Time, except for the agreements and covenants
contained or referred to in Article II, Section 5.02(b), the last sentence of
Section 5.08, and Sections 5.10, 5.12, and 5.17 hereof, and the agreements of
the "affiliates" of the Seller delivered pursuant to Section 5.07, which
agreements and covenants shall survive the Effective Time.
9.03 NOTICES. All notices or other communications hereunder shall be in
writing and shall be deemed given if delivered personally or mailed by prepaid
registered or certified mail (return receipt requested) or by telecopy, cable,
telegram or telex addressed as follows:
(a) If to the Seller, to:
Somerset Savings Bank
212 Elm Street
Sommerville, Massachusetts
Attention: Thomas J. Kelly
President and Chief Executive Officer
Facsimile No.:
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with a required copy to:
Nutter, McClennen & Fish, LLP
One International Place
Boston, Massachusetts 02110
Attention: John P. Driscoll, Jr., Esq.
and
Michael K. Krebs, Esq.
Facsimile No.: 617 973-9748
(b) If to the Buyer, to:
UST Corp.
40 Court Street
Boston, Massachusetts 02109
Attention: Neal F. Finnegan
President and Chief Executive
Officer
Facsimile No.: 617-726-7320
with a required copy to:
UST Corp.
40 Court Street
Boston, Massachusetts
Attention: Eric R. Fischer, Esq.
Executive Vice President, General Counsel and
Secretary
Facsimile No.: 617-695-4175
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and
Bingham Dana LLP
150 Federal Street
Boston, Massachusetts 02110
Attention: Neal J. Curtin, Esq.
and
Stephen H. Faberman, Esq.
Facsimile No.: (617) 951-8736
or such other address as shall be furnished in writing by any party, and any
such notice or communication shall be deemed to have been given as of the date
so mailed.
9.04 PARTIES IN INTEREST. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
assigns; PROVIDED, HOWEVER, that neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any party hereto without
the prior written consent of the other parties, and that nothing in this
Agreement is intended to confer, expressly or by implication, upon any other
person any rights or remedies under or by reason of this Agreement; PROVIDED,
HOWEVER, that the Seller's current and former officers and directors are
intended third-party beneficiaries with respect to the provisions set forth in
Section 5.19 hereof, and the provisions of such Section 5.19 may be enforced
after the Effective Time by such persons as intended third-party beneficiaries.
9.05 COMPLETE AGREEMENT. This Agreement, including the documents and
other writings referred to herein or delivered pursuant hereto, including the
Confidentiality Agreement and this Agreement contains the entire agreement and
understanding of the parties with respect to its subject matter. Except as set
forth in this Agreement or in the Disclosure Schedules, there are no
restrictions, agreements, promises, warranties, covenants or undertakings
between the parties other than those expressly set forth herein or therein. This
Agreement supersedes all prior agreements, including without limitation, the
Confidentiality Agreement, and understandings between the parties, both written
and oral, with respect to its subject matter.
9.06 COUNTERPARTS. This Agreement may be executed in counterparts, all of
which shall be considered one and the same agreement and each of which shall be
deemed to be an original and shall become effective when a counterpart has been
signed by each of the parties and delivered to each of the other parties which
delivery may be made by facsimile transmission.
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9.07 GOVERNING LAW. This Agreement shall be governed by the laws of the
Commonwealth of Massachusetts, without giving effect to the principles of
conflicts of laws thereof.
9.08 CAPTIONS. The Article and Section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
9.09 EFFECT OF INVESTIGATIONS. No investigation by the parties hereto
made heretofore or hereafter, whether pursuant to this Agreement or otherwise
shall affect the representations and warranties of the parties which are
contained herein and each such representation and warranty shall survive such
investigation.
9.10 SEVERABILITY. In the event that any one or more provisions of this
Agreement shall for any reason be held invalid, illegal or unenforceable in any
respect, by any court of competent jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement and the
parties shall use their best efforts to substitute a valid, legal and
enforceable provision which, insofar as practicable, implements the purposes and
intents of this Agreement.
9.11 SPECIFIC ENFORCEABILITY. The parties recognize and hereby
acknowledge that it is impossible to measure in money the damages that would
result to a party by reason of the failure of either of the parties to perform
any of the obligations imposed on it by this Agreement. Accordingly, if any
party should institute an action or proceeding seeking specific enforcement of
the provisions hereof, each party against which such action or proceeding is
brought hereby waives the claim or defense that the party instituting such
action or proceeding has an adequate remedy at law and hereby agrees not to
assert in any such action or proceeding the claim or defense that such a remedy
at law exists.
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IN WITNESS WHEREOF, the Buyer and the Seller have caused this Agreement
to be executed as a sealed instrument by their duly authorized officers as of
the day and year first above written.
UST CORP.
By: /s/ Neal F. Finnegan
-------------------------------------------
Title:President and Chief Executive Officer
SOMERSET SAVINGS BANK
By: /s/ Thomas J. Kelly
-------------------------------------------
Title:President and Chief Executive Officer
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EXHIBIT B
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of December 9, 1997, between SOMERSET
SAVINGS BANK, a Massachusetts stock savings bank (the "ISSUER") and UST CORP., a
Massachusetts corporation (the "GRANTEE").
WHEREAS, the Grantee and the Issuer have entered into an Affiliation
Agreement and Plan of Reorganization of even date herewith (as amended and in
effect from time to time, the "ACQUISITION AGREEMENT"), which agreement is being
executed by the parties thereto prior to the execution of this Agreement; and
WHEREAS, as a condition to the Grantee's entry into the Acquisition
--------- ------
Agreement and in consideration for such entry, the Issuer has agreed to (i)
grant to the Grantee the Option (as hereinafter defined) and (ii) make the cash
payment referred to in Section 4 below;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements set forth herein and in the Acquisition Agreement, the parties
hereto agree as follows:
1. The Issuer hereby grants to the Grantee an unconditional, irrevocable
option (the "OPTION") to purchase, subject to the terms hereof, up to 2,777,000
fully paid and nonassessable shares (the "OPTION SHARES") of common stock, par
value $1.00 per share, of the Issuer ("COMMON STOCK") at a price of $4.875 per
share (the "OPTION PRICE"). The number of shares of Common Stock that may be
received upon the exercise of the Option and the Option Price are subject to
adjustment, as herein set forth, provided that, except as provided by Section 9
hereof, in no event shall the number of shares for which this Option is
exercisable exceed 16.7% of the Issuer's issued and outstanding shares of Common
Stock (without giving effect to any shares of Common Stock issued pursuant to
the Option) less the number of shares previously issued pursuant to exercise of
the Option.
2. (a) The Holder (as such term is defined in paragraph (c) below) may
exercise the Option, in whole or in part, if, but only if, both an Initial
Triggering Event (as defined in paragraph (e) below) and a Subsequent Triggering
Event (as defined in paragraph (f) below) shall have occurred prior to the
occurrence of an Exercise Termination Event (as defined in paragraph (b) below),
PROVIDED that the Holder shall have sent the written notice of such exercise (as
provided in paragraph (h) of
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this Section 2) within thirty (30) days following such Subsequent Triggering
Event and prior to the Exercise Termination Event.
(b) The term "EXERCISE TERMINATION EVENT" shall mean the earliest of (i)
the Effective Time, (ii) any termination of the Acquisition Agreement in
accordance with the provisions thereof if such termination occurs prior to the
occurrence of an Initial Triggering Event, and (iii) in the event of any
termination of the Acquisition Agreement in accordance with the provisions
thereof after the occurrence of an Initial Triggering Event, the passage of
twelve (12) months after such termination. Upon the occurrence of an Exercise
Termination Event, this Option (or such portion hereof as to which the holder
has not theretofore given a notice of exercise in accordance with paragraph (h)
below) shall terminate and become void, without notice or other action by any
Person (the term "PERSON" for purposes of this Agreement having the meaning
assigned thereto in Sections 3(a)(9) and 13(d)(3) of the Securities Exchange Act
of 1934, as amended (the "EXCHANGE Act") and the rules and regulations
thereunder). Notwithstanding the termination of the Option, the Grantee shall be
entitled to purchase those Option Shares with respect to which it has exercised
the Option in whole or in part prior to the termination of the Option.
(c) The term "HOLDER" shall mean the holder or holders of the Option.
(d) The term "SCHEDULE 13G INVESTOR" shall mean any person holding voting
securities of the Issuer eligible to report the beneficial ownership of such
securities on Schedule 13G pursuant to the provisions of Rule 13d-1 under the
Exchange Act.
(e) The term "INITIAL TRIGGERING EVENT" shall mean any of the following
events or transactions occurring after the date hereof:
(i) The Issuer or any subsidiary of the Issuer, without having
received the Grantee's prior written consent, shall have entered into an
agreement to engage in an Acquisition Transaction with any Person, other
than the Grantee or any subsidiary of the Grantee, or, without the consent
of the Grantee, the Board of Directors of the Issuer shall have approved an
Acquisition Transaction or recommended that the shareholders of the Issuer
approve or accept any Acquisition Transaction other than as contemplated by
the Acquisition Agreement. For purposes of this Agreement, the term
"ACQUISITION TRANSACTION" shall mean (A) a merger or consolidation, or any
similar transaction, with the Issuer or any Significant Subsidiary of the
Issuer, or any subsidiary of the
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Issuer which, after such transaction, would be a Significant Subsidiary of
the Issuer, (B) a purchase, lease or other acquisition of all or
substantially all of the assets of the Issuer or any Significant Subsidiary
of the Issuer or (C) a purchase or other acquisition (including by way of
merger, consolidation, share exchange or otherwise) of securities
representing ten percent (10%) or more of the voting power of the Issuer or
any Significant Subsidiary of the Issuer;
(ii) Any Person, other than the Grantee or any subsidiary of the
Grantee or the Issuer in a fiduciary capacity, and other than a Schedule
13G Investor, shall have acquired beneficial ownership (as hereinafter
defined) or the right to acquire beneficial ownership of ten percent (10%)
or more of the outstanding shares of Common Stock if such Person owned
beneficially less than ten percent (10%) of the outstanding shares of
Common Stock on the date of this Agreement, or any Person shall have
acquired beneficial ownership of an additional three percent (3%) of the
outstanding shares of Common Stock if such Person owned beneficially ten
percent (10%) or more of the outstanding shares of Common Stock on the date
of this Agreement (the term "BENEFICIAL OWNERSHIP" for purposes of this
Agreement having the meaning assigned thereto in Section 13(d) of the
Exchange Act, and in the rules and regulations thereunder);
(iii) (A) The holders of Issuer Common Stock shall not have approved
the Acquisition Agreement at the meeting of such stockholders held for the
purpose of voting on the Acquisition Agreement, (B) such meeting shall not
have been held or shall have been canceled prior to the termination of the
Acquisition Agreement, or (C) the Issuer's Board of Directors shall have
withdrawn or modified in a manner adverse to Grantee the recommendation of
Issuer's Board of Director's with respect to the Acquisition Agreement, in
each case after it shall have been publicly announced or become publicly
known that (x) any Person, other than the Grantee or any subsidiary of the
Grantee, shall have made a bona-fide proposal to the Issuer or its
shareholders to engage in an Acquisition Transaction by public announcement
or written communication that shall be or become the subject of public
disclosure; or (y) any Person other than the Grantee or any subsidiary of
the Grantee, other than in connection with a transaction to which the
Grantee has given its prior written consent, shall have filed an
application or notice with the Federal Reserve Board or other federal or
state bank regulatory authority,
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which application or notice has been accepted for processing, for approval
to engage in an Acquisition Transaction;
(iv) After any Person other than the Grantee or any subsidiary of the
Grantee has made a proposal to the Issuer or its shareholders to engage in
an Acquisition Transaction, the Issuer shall have breached any covenant or
obligation contained in the Acquisition Agreement and such breach (A) would
entitle the Grantee to terminate the Acquisition Agreement and (B) shall
not have been remedied prior to the Notice Date (as defined in paragraph
(h) below); or
(v) Any person (other than Grantee or any subsidiary of Grantee) shall
have commenced (as such term is defined in Rule 14d-2 under the Exchange
Act) or shall have filed a registration statement under the Securities Act
of 1933, as amended (the "Securities Act"), with respect to, a tender offer
or exchange offer to purchase any shares of Issuer Common Stock such that,
upon consummation of such offer, such person would own or control 50% or
more of the then outstanding shares of Issuer Common Stock (such an offer
being referred to herein as a "Tender Offer" or an "Exchange Offer,"
respectively).
(f) The term "SUBSEQUENT TRIGGERING EVENT" shall mean either of the
following events or transactions occurring after the date hereof:
(i) The acquisition by any Person (other than a Schedule 13G Investor)
of beneficial ownership of fifteen percent (15%) or more of the then
outstanding Common Stock; or
(ii) The occurrence of the Initial Triggering Event described in
subparagraph (i) of paragraph (e) of this Section 2, except that the
percentage referenced in clause (C) thereof shall be fifteen percent (15%)
in lieu of ten percent (10%).
(g) The Issuer shall notify the Grantee promptly in writing of the
occurrence of any Initial Triggering Event or Subsequent Triggering Event
(together, a "TRIGGERING EVENT"), it being understood that the giving of such
notice by the Issuer shall not be a condition to the right of the Holder to
exercise the Option.
(h) In the event the Holder is entitled to and wishes to exercise the
Option, it shall send to the Issuer a written notice (the date of which being
herein referred to as the "NOTICE DATE") specifying (i) the total number of
shares of Common Stock it will purchase pursuant to such
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exercise, and (ii) a place and date not earlier than three (3) business days nor
later than sixty (60) business days from the Notice Date for the closing of such
purchase (the "CLOSING"); PROVIDED that if prior notification to or approval of
the Federal Reserve Board or any other regulatory agency is required in
connection with such purchase, the Holder shall promptly file the required
notice or application for approval and shall expeditiously process the same and
the period of time that otherwise would run pursuant to this sentence shall run
instead from the date on which any required notification periods have expired or
been terminated or such approvals have been obtained and any requisite waiting
period or periods shall have passed. The term "business day" for purposes of
this Agreement means any day, excluding Saturdays, Sundays and any other day
that is a legal holiday in The Commonwealth of Massachusetts or a day on which
banking institutions in The Commonwealth of Massachusetts are authorized by law
or executive order to close.
(i) At the Closing, the Holder shall pay to the Issuer the aggregate
purchase price for the shares of Common Stock purchased pursuant to the exercise
of the Option in immediately available funds by a wire transfer to a bank
account designated by the Issuer, PROVIDED that failure or refusal of the Issuer
to designate such a bank account shall not preclude the Holder from exercising
the Option.
(j) At such Closing, simultaneously with the delivery of immediately
available funds as provided in paragraph (i) above, the Issuer shall deliver to
the Holder a certificate or certificates representing the number of shares of
Common Stock purchased by the Holder and, if the Option should be exercised in
part only, a new Option evidencing the rights of the Holder thereof to purchase
the balance of the shares purchasable hereunder, and the Holder shall deliver to
the Issuer a copy of this Agreement and a letter agreeing that the Holder will
not offer to sell or otherwise dispose of such shares in violation of applicable
law or the provisions of this Agreement.
(k) Certificates for the Common Stock delivered at a Closing hereunder may
(in the sole discretion of the Issuer) be endorsed with a restrictive legend
that shall read substantially as follows:
"THE TRANSFER OF THE SHARES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO
RESTRICTION PURSUANT TO THE TERMS OF A STOCK OPTION AGREEMENT DATED AS OF
DECEMBER 9, 1997, A COPY OF WHICH AGREEMENT WILL BE PROVIDED TO THE HOLDER
HEREOF WITHOUT CHARGE
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UPON RECEIPT BY THE ISSUER OF A WRITTEN REQUEST THEREFOR."
It is understood and agreed that the above legend shall be removed by delivery
of substitute certificate(s) without such legend if the shares have been sold or
transferred in compliance with the provisions of this Agreement and under
circumstances that do not require the retention of such legend. In addition,
such certificates shall bear any other legend as may be required by law.
(l) Upon the giving by the Holder to the Issuer of the written notice of
exercise of the Option provided for under paragraph (h) above, the tender of the
applicable purchase price in immediately available funds and the tender of a
copy of this Agreement to the Issuer, such Holder shall be deemed to be the
holder of record of the shares of Common Stock issuable upon such exercise,
notwithstanding that the stock transfer books of the Issuer shall then be closed
or that certificates representing such shares of Common Stock shall not then be
actually delivered to the Holder. The Issuer shall pay all expenses, and any and
all United States federal, state and local taxes and other charges that may be
payable in connection with the preparation, issue and delivery of stock
certificates under this Section 2 in the name of the Holder or its assignee,
transferee or designee.
3. The Issuer agrees (a) that it shall at all times maintain, free from
preemptive rights, sufficient authorized but unissued or treasury shares of
Common Stock so that the Option may be exercised without requiring the Issuer's
stockholders to approve an increase in the number of authorized shares of Common
Stock after giving effect to all other options, warrants, convertible securities
and other rights to purchase Common Stock, (b) that it will not, by charter
amendment or through reorganization, consolidation, merger, dissolution or sale
of assets, or by any other voluntary act, avoid or seek to avoid the observance
or performance of any of the covenants, stipulations or conditions to be
observed or performed hereunder by the Issuer, (c) promptly to take all action
as may from time to time be required (including without limitation cooperating
fully with any Holders in preparing any applications or notices required under
the Bank Holding Company Act of 1956, as amended, or the Change in Bank Control
Act of 1978, as amended, or any state banking law), in order to permit such
Holders to exercise the Option and the Issuer duly and effectively to issue
shares of Common Stock pursuant hereto, and (d) promptly to take all action
provided herein to protect the rights of any Holders against dilution.
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4. PHANTOM STOCK PAYMENT. (a) As additional consideration for the Grantee's
entry into the Acquisition Agreement, upon the occurrence of a Subsequent
Triggering Event that occurs prior to an Exercise Termination Event, and subject
to paragraph (c) hereof, the Issuer shall pay to the Grantee, an amount in cash
(the "PHANTOM STOCK PAYMENT") determined in accordance with the next sentence
hereof. The Phantom Stock Payment shall be in an amount equal to the product of
(i) the number of Phantom Stock Shares, MULTIPLIED BY (ii) the Option Spread.
The number of Phantom Stock Shares shall initially be 536,669. The term "Option
Spread" shall mean the arithmetic difference between (x) the Option Price and
(y) the "market/offer price" as such term is defined in Section 8(a) of this
Agreement. If additional shares of Issuer Common Stock are issued or otherwise
become outstanding after the date of this Agreement (other than pursuant to
exercise of the Option pursuant to this Agreement), including, without
limitation, pursuant to stock option or other employee plans, or as a result of
the exercise of conversion rights, the number of Phantom Stock Shares shall be
increased so that, after such increase, the sum of (x) the number of Phantom
Stock Shares, as increased, PLUS (y) 2,777,000 shall equal 19.9% of the number
of shares of Issuer Common Stock then issued and outstanding without giving
effect to any shares subject or issued pursuant to the Option. Notwithstanding
the foregoing, nothing contained in this Section 4(a) or elsewhere in this
Agreement shall be deemed to authorize the Issuer or the Grantee to breach any
provision of the Acquisition Agreement. If the number of Option Shares and/or
the Option Price is adjusted in accordance with Section 6 of this Agreement,
there shall be a corresponding adjustment in the number of Phantom Stock Shares
and the Option Spread. On that date (the "PHANTOM STOCK PAYMENT DATE"), which is
at the earlier of (i) the Closing of the purchase of the shares of the Common
Stock subject to the Option pursuant to Section 2(h) hereof or (ii) the Payment
Date with respect to the repurchase of the Option by the Issuer pursuant to
Section 8(b) hereof, the Issuer shall pay to the Grantee the Phantom Stock
Payment, together with interest thereon at the rate specified in Section 4(c)
hereof, in immediately available funds by a wire transfer to a bank account
designated by the Grantee; PROVIDED, HOWEVER, that in the event that prior
notification to or approval of the Federal Reserve Board or any other regulatory
agency is required in connection with the purchase referred to in (i) above, the
Issuer shall pay to the Grantee the Phantom Stock Payment within thirty (30)
days of the Notice Date (as defined in Section 2(h) hereof.
(b) The Issuer agrees (i) that it shall at all times, after an Initial
Triggering Event, maintain sufficient readily available funds to pay the Phantom
Stock Payment and (ii) promptly to take all action as may from
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time to time be required in order to permit the Issuer to pay the Phantom Stock
Payment.
(c) To the extent that the Issuer is prohibited as a consequence of a
Regulatory Impediment (as defined in Section 8(c) hereof) from making the
Phantom Stock Payment in full (and the Issuer hereby undertakes to use its best
efforts to receive all required regulatory and legal approvals and to file any
required notices as promptly as practicable in order to pay the Phantom Stock
Payment) or to the extent that the Issuer would not have been designated
"Adequately Capitalized" as of the last day of the Issuer's most recent fiscal
quarter had the Issuer paid the Phantom Stock Payment in full as of such date,
the Issuer shall immediately so notify the Grantee and thereafter deliver or
cause to be delivered, from time to time, to the Grantee, as appropriate, the
portion of the Phantom Stock Payment that it is no longer prohibited from
delivering or that the Issuer can deliver and remain designated "Adequately
Capitalized", within ten (10) business days after the date on which the Issuer
is no longer so prohibited or restricted from paying. To the extent that the
Issuer is prohibited as a consequence of this Section 4(c) from paying the full
amount of the Phantom Stock Payment, interest shall accrue on the unpaid portion
thereof from and after the Phantom Stock Payment Date at the rate per annum
equal to the Federal Funds rate in effect on such date, as reported by the Wall
Street Journal. Payments made pursuant to this Section 4 after the Phantom Stock
Payment Date shall be applied first to accrued interest and then to the unpaid
portion of the Phantom Stock Payment.
5. This Agreement (and the Option granted hereby) is exchangeable, without
expense, at the option of each Holder, upon presentation and surrender of this
Agreement at the principal office of the Issuer, for other Agreements providing
for Options of different denominations entitling the Holder thereof to purchase,
on the same terms and subject to the same conditions as are set forth herein, in
the aggregate the same number of shares of Common Stock purchasable hereunder.
The terms "AGREEMENT" and "OPTION" as used herein include any Stock Option
Agreements and related Options for which this Agreement (and the Option granted
hereby) may be exchanged. Upon receipt by the Issuer of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this
Agreement, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Agreement, if mutilated, the Issuer will execute and deliver a new Agreement of
like tenor and date. Any such new Agreement executed and delivered shall
constitute for all purposes and under all circumstances an additional
contractual obligation on the
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part of the Issuer, whether or not this Agreement so lost, stolen, destroyed or
mutilated shall at any time be enforceable by anyone.
6. The number of Option Shares shall be subject to adjustment from time to
time as provided in this Section 6.
(a) (i) In the event of any change in the shares of Common Stock by reason
of stock dividend, split up, merger, recapitalization, subdivision,
conversion, combination, exchange of shares or similar transaction, the
type and number of Option Shares, and the Option Price therefor, shall be
adjusted appropriately, and proper provision shall be made in the
agreements governing such transaction, so that the Grantee shall receive
upon exercise of the Option the number and class of shares or other
securities or property that the Grantee would have held immediately after
such event if the Option had been exercised immediately prior to such
event, or the record date therefor, as applicable.
(ii) The Issuer may, at its election, make such increases in the
number of Option Shares, in addition to those required under subparagraph
(a)(i) above, as shall be determined by its Board of Directors to be
advisable in order to avoid taxation, so far as practicable, of any
dividend of stock or stock rights or any event treated as such for federal
income tax purposes to the recipients.
(b) Whenever the number of Option Shares (or other securities) purchasable
upon exercise hereof is adjusted as provided in this Section 6, the Option Price
shall be adjusted by multiplying the Option Price by a fraction, the numerator
of which is equal to the number of Option Shares prior to the adjustment and the
denominator of which is equal to the number of Option Shares (or other
securities) purchasable after the adjustment.
7. Upon the occurrence of a Subsequent Triggering Event that occurs prior
to an Exercise Termination Event, Issuer shall, at the request of Grantee
delivered within thirty (30) days of such Subsequent Triggering Event (whether
on the Grantor's own behalf or on the behalf of any subsequent Holder of this
Option (or part thereof) or any of the shares of Common Stock issued pursuant
hereto), promptly prepare, file and keep current, with respect to the Option and
the Option Shares, a "shelf" registration statement under Rule 415 of the
Securities Act or any successor provision, and Issuer shall use its best efforts
to qualify such shares under any applicable state securities laws; PROVIDED,
HOWEVER, that the Issuer shall have no obligation to file a registration
statement under the Securities Act with respect to the Option Shares if the
offer and sale of
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such common stock is exempt from the registration requirements of the Securities
Act pursuant to Section 3 thereof, including without limitation Section 3(a)(2).
Issuer will use all commercially reasonable efforts to cause such registration
statement first to become effective and then to remain effective for such period
not in excess of 180 days from the day such registration statement first becomes
effective or such shorter time as may be reasonably necessary to effect sales or
other dispositions of Option Shares. Grantee shall have the right to demand two
such registrations. Any registration statement prepared and filed under this
Section 7, and any sales covered thereby, shall be at Issuer's expense, except
for underwriting discounts or commissions, broker's fees and expenses and the
fees and disbursements of Grantee's counsel related thereto. The foregoing
notwithstanding, if, at the time of any request by Grantee for registration of
the Option or Option Shares as provided above, (i) Issuer is in registration
with respect to an underwritten public offering of shares of Common Stock, and
(ii) in the good faith judgment of the managing underwriter or managing
underwriters, or, if none, the sole underwriter or underwriters, of such
offering, the inclusion of the Option or Option Shares would interfere with the
successful marketing of the shares represented by the Option, the number of
Option Shares otherwise to be covered in the registration statement contemplated
hereby may be reduced; PROVIDED, HOWEVER, that if such reduction occurs, the
Issuer shall file a registration statement for the balance as promptly as
practical and no reduction shall thereafter occur. Each such Holder shall
provide all information reasonably requested by Issuer for inclusion in any
registration statement to be filed hereunder. If requested by any such Holder in
connection with such registration, Issuer shall become a party to any
underwriting agreement relating to the sale of such shares, but only to the
extent of obligating itself in respect of representations, warranties,
indemnities and other agreements customarily included in such underwriting
agreements for the Issuer.
8. (a) Upon the occurrence of a Subsequent Triggering Event that occurs
prior to an Exercise Termination Event, and subject in all events to paragraph
(c) hereof, (i) at the request of any Holder, delivered within thirty (30) days
following such occurrence (or such later period as provided in Section 11), the
Issuer shall repurchase the Option from the Holder at a price (the "OPTION
REPURCHASE PRICE") equal to the amount by which (A) the market/offer price (as
defined below) exceeds (B) the Option Price, multiplied by the number of shares
for which this Option may then be exercised, and (ii) at the request of any
owner of Option Shares from time to time (the "OWNER"), delivered within thirty
(30) days following such occurrence (or such later period as provided in Section
11), the Issuer shall repurchase such number of the Option Shares from such
Owner as
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the Owner shall designate at a price per share ("OPTION SHARE REPURCHASE PRICE")
equal to the greater of (A) the market/offer price and (B) the average exercise
price per share paid by the Owner for the Option Shares so designated. The term
"MARKET/OFFER PRICE" shall mean the highest of (w) the price per share of the
Common Stock at which a tender offer or exchange offer therefor has been made,
(x) the price per share of the Common Stock to be paid by any Person, other than
the Grantee or a subsidiary of the Grantee, pursuant to an agreement with the
Issuer, (y) the highest sale price for shares of Common Stock within the six (6)
month period immediately preceding the required repurchase of Options or Option
Shares, as the case may be, or (z) in the event of a sale of all or
substantially all of the Issuer's assets, the sum of the price paid in such sale
for such assets and the current market value of the remaining assets of the
Issuer as determined by a nationally recognized investment banking firm selected
by a majority in the interest of the Holders or the Owners, as the case may be,
and reasonably acceptable to the Issuer, divided by the number of shares of
Common Stock of the Issuer outstanding at the time of such sale. In determining
the market/offer price, the value of consideration other than cash shall be
determined by a nationally recognized investment banking firm selected by a
majority in interest of the Holders or the Owners, as the case may be, and
reasonably acceptable to the Issuer.
(b) Each Holder and Owner, as the case may be, may exercise its right to
require the Issuer to repurchase the Option and any Option Shares pursuant to
this Section 8 by surrendering for such purpose to the Issuer, at its principal
office, a copy of this Agreement or certificates for Option Shares, as
applicable, accompanied by a written notice or notices stating that such Holder
or Owner elects to require the Issuer to repurchase this Option and/or Option
Shares in accordance with the provisions of this Section 8. As promptly as
practicable, and in any event within ten (10) business days (the "PAYMENT DATE")
after the surrender of the Option and/or certificates representing Option Shares
and the receipt of such notice or notices relating thereto (the "SURRENDER
DATE"), the Issuer shall deliver or cause to be delivered to each Holder the
Option Repurchase Price and/or to each Owner the Option Share Repurchase Price
therefor or the portion thereof that the Issuer is not then prohibited under
applicable law and regulation from so delivering in accordance with paragraph
(c) hereof.
(c) To the extent that the Issuer is prohibited under applicable law or
regulation, or as a consequence of administrative policy or order, or as a
result of a written agreement or other binding obligation with a governmental or
regulatory body or agency (including without limitation
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any resolution of the Issuer's Board of Directors adopted at the direction or
request of any government or regulatory body or agency) (collectively,
"REGULATORY IMPEDIMENT"), from repurchasing the Option and/or the Option Shares
in full or to the extent that the Issuer would not have been designated
"Adequately Capitalized" (as such term is defined by the Issuer's primary
federal bank regulator) as of the last day of the Issuer's most recent fiscal
quarter had the Issuer repurchased the Option and/or the Option Shares in full
as of such date, the Issuer shall immediately so notify each Holder and/or each
Owner and thereafter deliver or cause to be delivered, from time to time, to
such Holder and/or Owner, as appropriate, the portion of the Option Repurchase
Price and the Option Share Repurchase Price, respectively, that it is no longer
prohibited from delivering, within ten (10) business days after the date on
which the Issuer is no longer so prohibited or that the Issuer can deliver and
remain designated "Adequately Capitalized" within the meaning of this sentence;
PROVIDED, HOWEVER, that if the Issuer at any time after delivery of a notice of
repurchase pursuant to paragraph (b) of this Section 8 is prohibited from
delivering as a consequence of a Regulatory Impediment, or the delivery of which
would cause the Issuer not be designated "Adequately Capitalized" to any Holder
and/or Owner, as appropriate, the Option Repurchase Price and the Option Share
Repurchase Price, respectively, in part or in full (and the Issuer hereby
undertakes to use its best efforts to receive all required regulatory and legal
approvals and to file any required notices as promptly as practicable in order
to accomplish such repurchase), such Holder or Owner may revoke its notice of
repurchase of the Option or the Option Shares either in whole or to the extent
of the prohibition, whereupon the Issuer shall promptly (i) deliver to such
Holder and/or Owner, as appropriate, that portion of the Option Purchase Price
or the Option Share Repurchase Price that the Issuer is not prohibited from
delivering or that the Issuer can deliver and remain designated "Adequately
Capitalized;" and (ii) deliver, as appropriate, either (A) to such Holder, a new
Stock Option Agreement evidencing the right of such Holder to purchase that
number of shares of Common Stock obtained by multiplying the number of shares of
Common Stock for which the surrendered Stock Option Agreement was exercisable at
the time of delivery of the notice of repurchase by a fraction, the numerator of
which is the Option Repurchase Price less the portion thereof theretofore
delivered to the Holder and the denominator of which is the Option Repurchase
Price, or (B) to such Owner, a certificate for the Option Shares it is then so
prohibited or restricted from repurchasing.
9. (a) In the event that prior to an Exercise Termination Event, the Issuer
shall enter into an agreement (i) to consolidate with or merge into any Person,
other than the Grantee or one of the Grantee's
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subsidiaries, and the Issuer shall not be the continuing or surviving
corporation of such consolidation or merger, (ii) to permit any Person, other
than the Grantee or one of its subsidiaries, to merge into the Issuer and the
Issuer shall be the continuing or surviving corporation, but, in connection with
such merger, the then outstanding shares of Common Stock shall be changed into
or exchanged for stock or other securities of any other Person or cash or any
other property, or the then outstanding shares of Common Stock shall, after such
merger, represent less than fifty percent (50%) of the outstanding shares and
share equivalents of the merged company, or (iii) to sell or otherwise transfer
all or substantially all of its assets to any Person, other than the Grantee or
one of the Grantee's subsidiaries, then, and in each such case, the agreement
governing such transaction shall make proper provision so that the Option shall
upon the consummation of any such transaction and upon the terms and conditions
set forth herein, be converted into, or exchanged for, an option (the
"SUBSTITUTE OPTION"), at the election of the Holder, of either (A) the Acquiring
Corporation (as defined in paragraph (b) below) or (B) any Person that controls
the Acquiring Corporation.
(b) The following terms have the meanings indicated:
(i) The term "ACQUIRING CORPORATION" shall mean (A) the continuing or
surviving corporation of a consolidation or merger with the Issuer (if
other than the Issuer), (B) the Issuer in a merger in which the Issuer is
the continuing or surviving Person, and (C) the transferee of all or
substantially all of the Issuer's assets.
(ii) The term "SUBSTITUTE COMMON STOCK" shall mean the common stock
issued by the issuer of the Substitute Option upon exercise of the
Substitute Option.
(iii) The term "ASSIGNED VALUE" shall mean the "market/offer price",
as defined in paragraph (a) of Section 8 hereof.
(iv) The term "AVERAGE PRICE" shall mean the average closing price of
a share of the Substitute Common Stock for the one (1) year period
immediately preceding the consolidation, merger or sale in question, but in
no event higher than the closing price of the shares of the Substitute
Common Stock on the day preceding such consolidation, merger or sale,
PROVIDED that if the Issuer is the issuer of the Substitute Option, the
Average Price shall be computed with respect to a share of common stock
issued by the Person merging into the Issuer or by any company which
controls such Person, as the Holder may elect.
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(c) Except as set forth in (d) below, the Substitute Option shall have the
same terms as the Option, PROVIDED that if the terms of the Substitute Option
cannot, for legal reasons, be the same as the Option, such terms shall, to the
extent legally permissible, be as similar as possible to, and in no event less
advantageous to the Holder than, the terms of the Option. The issuer of the
Substitute Option shall also enter into an agreement with the then Holder or
Holders of the Substitute Option in substantially the same form as this
Agreement, which shall be applicable to the Substitute Option.
(d) The Substitute Option shall be exercisable for such number of shares of
the Substitute Common Stock as is equal to (i) the product of (A) the Assigned
Value and (B) the number of shares of Common Stock for which the Option is then
exercisable, divided by (ii) the Average Price; PROVIDED, HOWEVER, that solely
for purposes of this Section 9, if the Phantom Stock Payment has not been paid
pursuant to Section 4 hereof, the number of shares of Common Stock for which the
Option is then exercisable shall equal 19.9% of the Issuer's issued and
outstanding shares of Common Stock less the number of shares previously issued
pursuant to the Option and the Grantee shall not otherwise be entitled to the
Phantom Stock Payment provided by Section 4 hereof. The exercise price of the
Substitute Option per share of the Substitute Common Stock shall then be equal
to the Option Price multiplied by a fraction in which the numerator is the
number of Option Shares, as adjusted pursuant to this Section 8(d), and the
denominator is the number of shares of the Substitute Common Stock for which the
Substitute Option is exercisable.
(e) In no event, pursuant to any of the foregoing paragraphs, shall the
Substitute Option be exercisable for more than 19.9% of the aggregate of the
shares of the Substitute Common Stock outstanding prior to exercise of the
Substitute Option (without giving effect to any shares of Substitute Common
Stock issued pursuant to the Substitute Option) less the number of shares
previously issued pursuant to the Substitute Option. In the event that the
Substitute Option would be exercisable for more than 19.9% of the shares of
Substitute Common Stock outstanding prior to exercise but for this paragraph
(e), the issuer of the Substitute Option (the "SUBSTITUTE OPTION ISSUER") shall
make a cash payment to the Holder equal to the excess of (i) the value of the
Substitute Option without giving effect to the limitation in this paragraph (e)
over (ii) the value of the Substitute Option after giving effect to the
limitation in this paragraph (e). The difference in value shall be determined by
a nationally recognized investment banking firm selected by a majority in
interest of the Holders or the Owners, as the case may be.
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(f) The Issuer shall not enter into any transaction described in paragraph
(a) of this Section 9 unless the Acquiring Corporation and any Person that
controls the Acquiring Corporation shall have assumed in writing all the
obligations of the Issuer hereunder.
10. (a) At the written request of the holder of the Substitute Option (the
"SUBSTITUTE OPTION HOLDER"), and subject to paragraph (c) below, the issuer of
the Substitute Option (the "SUBSTITUTE OPTION ISSUER") shall repurchase the
Substitute Option from the Substitute Option Holder at a price (the "SUBSTITUTE
OPTION REPURCHASE PRICE") equal to the amount by which (i) the Highest Closing
Price (as hereinafter defined) exceeds (ii) the exercise price of the Substitute
Option, multiplied by the number of shares of the Substitute Common Stock for
which the Substitute Option may then be exercised, and at the request of each
owner (the "SUBSTITUTE SHARE OWNER") of shares of the Substitute Common Stock
(the "SUBSTITUTE SHARES"), the Substitute Option Issuer shall repurchase the
Substitute Shares at a price per share (the "SUBSTITUTE SHARE REPURCHASE PRICE")
equal to the greater of (A) the Highest Closing Price and (B) the average
exercise price per share paid by the Substitute Share Owner for the Substitute
Shares so designated. The term "HIGHEST CLOSING PRICE" shall mean the highest
closing price for shares of the Substitute Common Stock within the six (6) month
period immediately preceding the date the Substitute Option Holder gives notice
of the required repurchase of the Substitute Option or the Substitute Share
Owner gives notice of the required repurchase of the Substitute Shares, as
applicable.
(b) Each Substitute Option Holder and the Substitute Share Owner, as the
case may be, may exercise its respective right to require the Substitute Option
Issuer to repurchase the Substitute Option and the Substitute Shares pursuant to
this Section 9 by surrendering for such purpose to the Substitute Option Issuer,
at its principal office, the agreement for such Substitute Option (or, in the
absence of such an agreement, a copy of this Agreement) and certificates for
Substitute Shares accompanied by a written notice or notices stating that such
Substitute Option Holder or Substitute Share Owner elects to require the
Substitute Option Issuer to repurchase the Substitute Option and/or the
Substitute Shares in accordance with the provisions of this Section 10. As
promptly as practicable, and in any event within five (5) business days after
the surrender of the Substitute Option and/or the certificates representing
Substitute Shares and the receipt of such notice or notices relating thereto,
the Substitute Option Issuer shall deliver or cause to be delivered to the
Substitute Option Holder the Substitute Option Repurchase Price and/or to the
Substitute Share Owner the Substitute Share Repurchase Price therefor, or the
portion(s) thereof which the
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Substitute Option Issuer is not then prohibited under applicable law and
regulation from so delivering.
(c) To the extent that the Substitute Option Issuer is prohibited under
applicable law or regulation, or as a consequence of administrative policy, or
as a result of a written agreement or other binding obligation with a
governmental or regulatory body or agency, from repurchasing the Substitute
Option and/or the Substitute Shares in full, the Substitute Option Issuer shall
immediately so notify each Substitute Option Holder and/or the Substitute Share
Owner and thereafter deliver or cause to be delivered, from time to time, to the
Substitute Option Holder and/or Substitute Share Owner, as appropriate, that
portion of the Substitute Option Repurchase Price and the Substitute Share
Repurchase Price, respectively, which it is no longer prohibited from
delivering, within five (5) business days after the date on which the Substitute
Option Issuer is no longer so prohibited, PROVIDED, HOWEVER, that if the
Substitute Option Issuer is, at any time after delivery of a notice of
repurchase pursuant to paragraph (b) of this Section 10 prohibited under
applicable law or regulation, or as a consequence of administrative policy, or
as a result of a written agreement or other binding obligation with a
governmental or regulatory body or agency, from delivering to the Substitute
Option Holder and/or the Substitute Share Owner, as appropriate, the Substitute
Option Repurchase Price and the Substitute Share Repurchase Price, respectively,
in part or in full (and the Substitute Option Issuer shall use its best efforts
to receive all required regulatory and legal approvals as promptly as
practicable in order to accomplish such repurchase), the Substitute Option
Holder or Substitute Share Owner may revoke its notice of repurchase of the
Substitute Option or the Substitute Shares either in whole or to the extent of
the prohibition, whereupon the Substitute Option Issuer shall promptly (i)
deliver to the Substitute Option Holder or Substitute Share Owner, as
appropriate, that portion of the Substitute Option Repurchase Price or the
Substitute Share Repurchase Price that the Substitute Option Issuer is not
prohibited from delivering; and (ii) deliver, as appropriate, either (A) to the
Substitute Option Holder, a new Substitute Option evidencing the right of the
Substitute Option Holder to purchase that number of shares of the Substitute
Common Stock obtained by multiplying the number of shares of the Substitute
Common Stock for which the surrendered Substitute Option was exercisable at the
time of delivery of the notice of repurchase by a fraction, the numerator of
which is the Substitute Option Repurchase Price LESS the portion thereof
theretofore delivered to the Substitute Option Holder and the denominator of
which is the Substitute Option Repurchase Price, or (B) to the Substitute Share
Owner, a certificate for the Substitute Option Shares it is then so prohibited
from repurchasing.
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11. The thirty (30) day period for exercise of certain rights under
Sections 2, 7, 8 and 13 hereof shall be extended in each such case: (i) to the
extent necessary to obtain all regulatory approvals for the exercise of such
rights and for the expiration of all statutory waiting periods; and (ii) to the
extent necessary to avoid liability under Section 16(b) of the Exchange Act by
reason of such exercise, PROVIDED that notice of intent to exercise such rights
shall be given to the Issuer within the requisite thirty (30) day period and the
Grantee and the Holders shall use their best efforts to promptly obtain all
requisite approvals and cause the expiration of all requisite waiting periods.
12. The Issuer hereby represents and warrants to the Grantee as follows:
(a) The Issuer has full corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by the
Board of Directors of the Issuer and no other corporate proceedings on the part
of the Issuer are necessary to authorize this Agreement or to consummate the
transactions so contemplated. This Agreement has been duly and validly executed
and delivered by the Issuer. This Agreement is the valid and legally binding
obligation of the Issuer, enforceable against the Issuer in accordance with its
respective terms, except that enforcement thereof may be limited by the
receivership, conservatorship and supervisory powers of bank regulatory agencies
generally as well as bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting enforcement of creditors rights generally and except that
enforcement thereof may be subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law) and
the availability of equitable remedies.
(b) The Issuer has taken all necessary corporate action to authorize and
reserve and to permit it to issue, and at all times from the date hereof through
the termination of this Agreement in accordance with its terms will have
reserved for issuance upon the exercise of the Option, that number of shares of
Common Stock equal to the maximum number of shares of Common Stock at any time
and from time to time issuable hereunder, and all such shares, upon issuance
pursuant hereto, will be duly authorized, validly issued, fully paid,
nonassessable, and will be delivered free and clear of all claims, liens,
encumbrances and security interests and not subject to any preemptive rights.
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13. 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, whether by operation of law or otherwise, without the express
written consent of the other party, except that (a) the Grantee shall, at any
time, be permitted to assign its rights under this Option Agreement or the
Option created hereunder to any Affiliate (as defined in the Acquisition
Agreement) of the Grantee and (b) in the event a Subsequent Triggering Event
shall have occurred prior to an Exercise Termination Event, the Grantee may,
subject to the right of first refusal set forth in Section 14, assign, transfer
or sell in whole or in part its rights and obligations hereunder within thirty
(30) days following such Subsequent Triggering Event (or such later period as
provided in Section 10); PROVIDED, HOWEVER, that in the event the Grantee sells,
assigns or transfers all or a portion of the Option to other Holders as
permitted by this Agreement, the Grantee may exercise its rights hereunder on
behalf of itself and such Holders.
14. If at any time after the occurrence of a Subsequent Triggering Event
and, with respect to shares of Common Stock or other securities acquired by the
Grantee pursuant to an exercise of the Option, prior to the expiration of
twenty-four (24) months after the date on which the Option would have terminated
but for its exercise pursuant to Section 2(b), the Grantee shall desire to sell,
assign, transfer or otherwise dispose of the Option, in whole or in part, or all
or any of the shares of Common Stock or other securities acquired by the Grantee
pursuant to the Option, the Grantee shall give the Issuer written notice of the
proposed transaction (an "OFFEROR'S NOTICE"), identifying the proposed
transferee, accompanied by a copy of a binding offer to purchase the Option or
such shares or other securities signed by such transferee and setting forth the
terms of the proposed transaction. An Offeror's Notice shall be deemed an offer
by the Grantee to the Issuer, which may be accepted within ten (10) business
days of the receipt of such Offeror's Notice, on the same terms and conditions
and at the same price at which the Grantee is proposing to transfer the Option
or such shares or other securities to such transferee. The purchase of the
Option or such shares or other securities by the Issuer shall be settled within
five (5) business days of the date of the acceptance of the offer and the
purchase price shall be paid to the Grantee in immediately available funds,
PROVIDED that, if prior notification to or approval, consent or waiver of the
Federal Reserve Board or any other regulatory authority is required in
connection with such purchase, the Issuer shall promptly file the required
notice or application for approval, consent or waiver and shall expeditiously
process the same (and the Grantee shall cooperate with the Issuer in the filing
of any such notice or application and the obtaining of any such approval) and
the period of time
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that otherwise would run pursuant to this sentence shall run instead from the
date on which, as the case may be, (a) the required notification period has
expired or been terminated or (b) such approval has been obtained and, in either
event, any requisite waiting period shall have passed. In the event of the
failure or refusal of the Issuer to purchase the Option or the shares or other
securities, as the case may be, covered by an Offeror's Notice or if the Federal
Reserve Board or any other regulatory authority disapproves the Issuer's
proposed purchase of the Option or such shares or other securities, the Grantee
may, within sixty (60) days following the date of the Offeror's Notice (subject
to any necessary extension for regulatory notification, approval, or waiting
periods), sell all, but not less than all, of the portion of the Option (which
may be one hundred percent (100%)) or such shares or other securities, as the
case may be, proposed to be transferred to the proposed transferee identified in
the Offeror's Notice at no less than the price specified and on terms no more
favorable to the proposed transferee than those set forth in the Offeror's
Notice. The requirements of this Section 14 shall not apply to (i) any
disposition of the Option or any shares of Common Stock or other securities by a
Person to whom the Grantee has assigned its rights under the Option with the
prior written consent of the Issuer, (ii) any sale by means of a public offering
in which steps are taken to reasonably ensure that no purchaser will acquire
securities representing more than five percent (5%) of the outstanding shares of
Common Stock of the Issuer or (iii) any transfer to a direct or indirect
wholly-owned subsidiary of the Grantee which agrees in writing to be bound by
the terms hereof.
15. Each of the Grantee and the Issuer will use all reasonable efforts to
make all filings with, and to obtain consents of, all third parties and
governmental authorities necessary to the consummation of the transactions
contemplated by this Agreement, including without limitation applying to the
Federal Reserve Board under the Bank Holding Company Act of 1956, as amended,
for approval to acquire the shares issuable hereunder or to make the Phantom
Stock Payment provided for herein.
16. Notwithstanding anything to the contrary herein, in the event that the
Holder or the Owner or any Related Person thereof (as hereinafter defined) is a
Person making an offer or proposal to engage in an Acquisition Transaction
(other than the transaction contemplated by the Acquisition Agreement), then (a)
in the case of a Holder or any Related Person thereof, the Option held by it
shall immediately terminate and be of no further force or effect, and the
obligation of the Issuer to make the Phantom Stock Payment shall cease, and (b)
in the case of an Owner or any Related Person thereof, the Option Shares held by
it shall
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94
be immediately repurchasable by the Issuer at the Option Price. For purposes of
this Agreement, a "RELATED PERSON" of a Holder or Owner means any Affiliate (as
defined in Rule 12b-2 of the rules and regulations under the Exchange Act) of
the Holder or the Owner and any Person that is required to file a Schedule 13D
with the Holder or the Owner with respect to shares of Common Stock or options
to acquire the Common Stock.
17. The parties hereto acknowledge that damages would be an inadequate
remedy for a breach of this Agreement by either party hereto and that the
obligations of the parties hereto shall be enforceable by either party hereto
through injunctive or other equitable relief.
18. If any term, provision, covenant or restriction contained in this
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 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 Holder is not permitted to acquire, or the Issuer is not permitted to
repurchase pursuant to Section 8, the full number of shares of Common Stock
provided in Section 1(a) hereof (as adjusted pursuant to Sections 1(b) or 6(a)
hereof), or the Issuer is not permitted to pay the Phantom Stock Payment
pursuant to Section 4 hereof, it is the express intention of the Issuer to allow
the Holder to acquire or to require the Issuer to repurchase such lesser number
of shares and to pay such lesser amount of the Phantom Stock Payment as may be
permissible, without any amendment or modification hereof.
19. All notices, requests, claims, demands and other communications
hereunder shall be deemed to have been duly given when delivered in Person, by
cable, telegram, telecopy or telex, or by registered or certified mail (postage
prepaid, return receipt requested) at the respective addresses of the parties
set forth in the Acquisition Agreement.
20. This Agreement shall be governed by and construed in accordance with
the laws of The Commonwealth of Massachusetts, regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof.
21. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which shall constitute one
and the same agreement.
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95
22. Except as otherwise expressly 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.
23. Except as otherwise expressly provided herein, this Agreement contains
the entire agreement between the parties with respect to the transactions
contemplated hereunder and supersedes all prior arrangements or understandings
with respect thereof, written or oral. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective successors and permitted assigns. Nothing in this
Agreement, express or implied, is intended to confer upon any party, other than
the parties hereto, and their respective successors and permitted assigns, any
rights, remedies, obligations or liabilities under or by reason of this
Agreement, except as expressly provided herein.
24. Capitalized terms used in this Agreement and not defined herein shall
have the meanings assigned thereto in the Acquisition Agreement.
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96
IN WITNESS WHEREOF, each of the parties has caused this Stock Option
Agreement to be executed as a sealed instrument on its behalf by its officers
thereunder duly authorized, all as of the day and year first above written.
SOMERSET SAVINGS BANK
By:/s/ Thomas J. Kelly
------------------------------------
Title: President and Chief Executive
Officer
UST CORP.
By:/s/ Neal F. Finnegan
------------------------------------
Title: President and Chief Executive
Officer
97
EXHIBIT C
December 9, 1997
UST Corp.
40 Court Street
Boston, MA 02109
Attention: Neal F. Finnegan, President and Chief Executive Officer
Ladies and Gentlemen:
The undersigned (the "STOCKHOLDER") beneficially owns and has sole
voting power with respect to the number of shares of the common stock, par value
$1.00 per share (the "SHARES"), of Somerset Savings Bank, a Massachusetts stock
savings bank (the "Seller"), indicated opposite the Stockholder's name on
SCHEDULE 1 attached hereto.
Immediately prior to the execution of this letter agreement, UST Corp.
(the "Buyer") and the Seller are entering into an Affiliation Agreement and Plan
of Reorganization (as amended and in effect from time to time, the "ACQUISITION
AGREEMENT") providing, among other things, for the direct or indirect
acquisition of the Seller by the Buyer (the "ACQUISITION"). The undersigned
understands that Buyer has undertaken and will continue to undertake substantial
expenses in connection with the negotiation and execution of the Acquisition
Agreement and the subsequent actions necessary to consummate the transactions
contemplated by the Acquisition Agreement.
In consideration of, and as a condition to, the Buyer's entering into
the Acquisition Agreement, and in consideration of the expenses incurred and to
be incurred by the Buyer in connection therewith, the Stockholder and the Buyer
agree as follows:
1. The Stockholder, while this letter agreement is in effect, shall
vote or cause to be voted all of the Shares, as well as any other shares of
common stock of the Seller of which the Stockholder acquires beneficial
98
UST Corp.
December 9, 1997
Page 2
ownership and sole voting power, whether pursuant to the exercise of stock
options or otherwise, as long as such shares are owned by the Stockholder as of
the record date for the special meeting of the Seller's stockholders to be
called and held following the date hereof, for the approval of the Acquisition
Agreement and the Acquisition and shall vote or cause to be voted all such
shares, at such special meeting or any other meeting of the Seller's
stockholders following the date hereof, against the approval of any other
agreement providing for a merger, acquisition consolidation, sale of a material
amount of assets or other business combination of the Seller or any of its
subsidiaries with any person or entity other than the Buyer, or any subsidiary
of the Buyer.
2. The Stockholder will not sell, assign, transfer or otherwise
dispose of (including, without limitation, by the creation of a Lien (as defined
in paragraph 5 below)), or permit to be sold, assigned, transferred or otherwise
disposed of, any Shares owned by the Stockholder, whether such Shares are held
by the Stockholder on the date of this letter agreement or are subsequently
acquired, whether pursuant to the exercise of stock options or otherwise, except
(a) transfers by will or by operation of law (in which case this letter
agreement shall bind the transferee), (b) transfers pursuant to any pledge
agreement (subject to the pledgee agreeing in writing to be bound by the terms
of this letter agreement), (c) transfers in connection with estate planning
purposes, including transfers to relatives, trusts and charitable organizations,
subject to the transferee agreeing in writing to be bound by the terms of this
letter agreement, and (d) as the Buyer may otherwise agree in its sole
discretion. The Buyer may reasonably request, at its sole expense to have any
existing certificates representing Shares subject to this letter agreement
canceled and reissued bearing the following legend:
"THIS CERTIFICATE, AND THE SHARES
REPRESENTED HEREBY, ARE SUBJECT TO CERTAIN
VOTING AND TRANSFER RESTRICTIONS CONTAINED
IN A VOTING AGREEMENT BY AND BETWEEN BUYER
AND THE BENEFICIAL OWNER OF THESE SHARES AND
MAY BE TRANSFERRED ONLY IN COMPLIANCE
THEREWITH. COPIES OF THE ABOVE-REFERENCED
AGREEMENT ARE ON FILE AT THE OFFICES OF THE
SELLER."
3. The agreements contained herein are intended to relate to
restrictions on transferability and to continue only for such time as may
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UST Corp.
December 9, 1997
Page 3
reasonably be necessary to obtain all necessary approvals, including shareholder
approval and all necessary governmental approvals, of the Acquisition and all
other transactions contemplated by the Acquisition Agreement.
4. The Stockholder agrees that, so long as the Acquisition
Agreement has not been terminated in accordance with terms thereof, the
Stockholder shall, and shall instruct each of his representatives, agents,
advisors, Associates (as defined in the Acquisition Agreement) and Affiliates
(as defined in the Acquisition Agreement) to, cease and refrain from any
activities, discussions, negotiations, providing any information with respect
to, or other actions with any parties other than the Buyer with respect to any
Acquisition Transaction (as defined in the Acquisition Agreement), except to the
extent that the Seller would be permitted to engage in such activities,
discussions, negotiations, providing any information with respect to, or other
actions pursuant to Section 5.04 of the Acquisition Agreement.
5. The Stockholder represents that the Stockholder has the complete
and unrestricted power and the unqualified right to enter into and perform the
terms of this letter agreement. The Stockholder further represents that this
letter agreement (assuming this letter agreement constitutes a valid and binding
agreement of the Buyer) constitutes a valid and binding agreement with respect
to the Stockholder, enforceable against the Stockholder in accordance with its
terms, except as enforcement may be limited by general principles of equity
whether applied in a court of law or a court of equity and by bankruptcy,
insolvency and similar laws affecting creditors' rights and remedies generally.
Except as may be set forth in SCHEDULE 1, the Stockholder represents that the
Stockholder beneficially owns the number of Shares indicated opposite such
Stockholder's name on said SCHEDULE 1, free and clear of any liens, claims,
charges or other encumbrances or restrictions of any kind whatsoever, other than
pursuant to the Securities Act of 1933, as amended or the Securities Exchange
Act of 1934, as amended ("LIENS"), and has sole and otherwise unrestricted,
voting power with respect to such Shares.
6. Notwithstanding anything herein to the contrary, the agreements
contained herein shall remain in full force and effect until the earlier of (a)
the consummation of the Acquisition or (b) the termination of the Acquisition
Agreement in accordance with Article VIII thereof.
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UST Corp.
December 9, 1997
Page 4
7. The Stockholder has signed this letter agreement intending to be
bound thereby. The Stockholder expressly agrees that this letter agreement shall
be specifically enforceable in any court of competent jurisdiction in accordance
with its terms against the Stockholder. All of the covenants and agreements
contained in this letter agreement shall be binding upon, and inure to the
benefit of, the respective parties and their permitted successors, assigns,
heirs, executors, administrators and other legal representatives, as the case
may be.
8. This letter agreement may be executed in one or more
counterparts, each of which will be deemed an original but all of which together
shall constitute one and the same instrument.
9. No waivers of any breach of this letter agreement extended by
the Buyer to the Stockholder shall be construed as a waiver of any rights or
remedies of the Buyer with respect to any subsequent breach of the Stockholder
hereunder.
10. This letter agreement is deemed to be signed as a sealed
instrument and is to be governed by the laws of The Commonwealth of
Massachusetts, without giving effect to the principles of conflicts of laws
thereof. If any provision hereof is deemed unenforceable, the enforceability of
the other provisions hereof shall not be affected.
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UST Corp.
December 9, 1997
Page 5
If the foregoing accurately reflects your understanding of the subject
matter intended to be contained herein, please confirm our agreement by signing
this letter where indicated below.
Very truly yours,
--------------------------
AGREED TO AND ACCEPTED BY AS
OF THE DATE FIRST ABOVE WRITTEN
UST CORP.
By: /s/ Eric R. Fischer
----------------------------------------------------------
Name: Eric R. Fischer
Title: Executive Vice President, General Counsel and Clerk
102
SCHEDULE 1
Number of Shares
Name of Stockholder Beneficially Owned Shares Subject To Pledge
- -------------------- ------------------ ------------------------
103
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, dated as of December 9, 1997, is by and between
USTRUST, a Massachusetts bank and trust company (as successor by merger to the
Seller referred to below, the "BANK") and THOMAS J. KELLY, an individual
residing at 24 Bedford Street, Burlington, Massachusetts 01803 (the
"EXECUTIVE"). Capitalized terms used herein but not otherwise defined herein
shall have the meaning ascribed to them in that certain Affiliation Agreement
and Plan of Reorganization (the "AFFILIATION AGREEMENT"), dated as of December
9, 1997, by and between Buyer Holding Co. (the "BUYER") and Somerset Savings
Bank ("SELLER").
WHEREAS, prior to the Effective Time, the Executive was the President and
Chief Executive Officer of the Seller;
WHEREAS, the Executive, in his role as President and Chief Executive
Officer, had integral knowledge of the Seller's operations, policies, customers,
personnel and community;
WHEREAS, pursuant to the terms of the Affiliation Agreement, at the
effective time of the Merger referred to below (the "EFFECTIVE TIME OF THE
MERGER") the Buyer will cause its wholly-owned subsidiary, Buyer Corp., a
Massachusetts corporation and parent holding company of the Bank, to acquire all
of the assets and liabilities of the Seller and transfer such assets and
liabilities to the Bank pursuant to the terms of a merger of the Seller with and
into the Bank (the "MERGER"); and
WHEREAS, Buyer believes and the Executive agrees that his services are
necessary to facilitate a smooth, sound and nondisruptive transition following
the Merger and that his services are necessary to facilitate the effective
integration and consolidation of the Seller and the Bank and in operating the
Bank thereafter;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties hereto agree as follows:
1. FREEDOM TO CONTRACT. The Executive represents that he is free to enter
into this Agreement and that he has not made and will not make any agreement in
conflict with this Agreement.
1A. EFFECTIVENESS OF AGREEMENT. This Agreement shall be null and void and
shall have no force and effect until and unless the Merger referred to above
shall have occurred at the Effective Time of the Merger pursuant to the terms of
the
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Affiliation Agreement. This Agreement shall also be null and void and shall have
no force and effect if the Executive shall have ceased to be employed as
President and Chief Executive Officer of the Seller prior to the Effective Time
of the Merger.
2. EMPLOYMENT. The Bank hereby employs the Executive as an Executive Vice
President of the Bank and the Executive agrees to continue in the service of the
Bank, subject to the terms and conditions contained herein. During the term of
this Agreement, the Executive shall be a member of the Asset Liability
Management Committee of the Bank.
3. DUTIES. Subject to the general direction of the Board of Directors of
the Bank (the "BOARD"), the Executive shall perform such duties, including those
relating to the integration and consolidation of the Seller with the Bank
consistent with the Executive's position as an Executive Vice President of the
Bank, as may be requested from time to time by the President and Chief Executive
Officer of the Bank or his successor. While employed by the Bank hereunder, the
Executive shall devote his full business time and best efforts, judgment, skill
and knowledge exclusively to the advancement of the Bank's interests and to the
discharge of his duties and responsibilities for the Bank. While employed by the
Bank hereunder, the Executive shall not engage in any other business activity,
except as approved by the Board, the President and Chief Executive Officer or
the Board's designee in writing. It is agreed, however, that the provisions of
this Section 3 shall not be violated by the Executive's holding of directorships
or related positions in charitable, educational or not-for-profit organizations
which do not involve substantial time commitments or by passive personal
investment activities, provided that such positions and activities are not in
conflict, and do not otherwise interfere, with the Executive's duties and
responsibilities to the Bank.
4. COMPENSATION AND BENEFITS.
4.1. SALARY. During the Term (as defined below) of this Agreement, the
Executive shall be paid a salary (the "SALARY") at the rate of Two-Hundred and
Twenty-Five Thousand Dollars ($225,000) per annum, payable as customarily paid
by the Bank to executive officers generally. The Bank, in its sole discretion,
may increase the Salary at any time or from time to time, but has made no
representation that it intends to do so.
4.2. RESTRICTED STOCK GRANT. The Bank hereby grants to the Executive a
restricted stock award of 20,000 shares of Buyer Restricted Common Stock
("RESTRICTED STOCK"), 6,666 shares of which will vest on the date which is sixty
(60) days after the Effective Date (as defined in Section 5 hereof), 6,666
shares of which will vest on the first anniversary of the Effective Date and
6,667 shares of which will vest on the second anniversary of the Effective Date
(the "RESTRICTED STOCK AWARD"). The terms and conditions of the Restricted Stock
shall otherwise be governed by the terms of the Buyer's Stock Compensation Plan.
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4.3. BENEFITS. During the term hereof, the Executive shall be entitled
to participate in a supplemental executive retirement plan of the Buyer in the
form attached hereto as EXHIBIT A and in any and all employee benefit plans from
time to time in effect for employees of the Bank generally, excluding only plans
providing payments and/or other benefits in the event of a termination of
employment. Such participation shall be subject to the terms of the applicable
plan documents, generally applicable Bank policies and the discretion of the
Board or any administrative or other committee provided for in or contemplated
by such plan. The Executive shall also be eligible to receive cash bonuses
and/or stock options, but only to the extent recommended by the President and
Chief Executive Officer and as determined in the discretion of the Compensation
Committee of the Buyer.
5. TERM. The term (the "TERM") of employment of the Executive hereunder
shall commence as of the Effective Time of the Merger (the "EFFECTIVE DATE") and
shall continue until April 16, 2002 (the "END DATE").
6. TERMINATION OF EMPLOYMENT. Notwithstanding the provisions of Section 5
above, the Executive's employment under this Agreement shall terminate under the
following circumstances and, in that event, the Bank shall have only such
obligations to the Executive as are specified below under the applicable
termination provision; PROVIDED, HOWEVER, that except with respect to the
matters specifically set forth in this Section 6, the foregoing is not intended
to limit the rights of the Executive, if any, upon his termination of
employment, under the terms of any other benefit plan of the Buyer or the Buyer
Bank in which the Executive is a participant:
a. UPON DEATH. In the event of the Executive's death during the Term
hereof, the Executive's employment hereunder shall immediately and automatically
terminate. In such event, the Bank shall pay to the Executive's designated
beneficiary or, if no beneficiary has been designated by the Executive, to the
Executive's estate, any base salary earned and unpaid through the date of death.
b. AS A RESULT OF DISABILITY. In the event that the Executive becomes
disabled during the Term hereof and, as a result, is unable to perform
substantially all of his duties for the Bank for more than one hundred and
twenty (120) days during any period of three hundred and sixty-five (365) days,
the Bank may terminate the Executive's employment without further obligation
(other than as set forth in the next sentence) upon notice to the Executive. In
the event of such disability, the Executive will continue to receive his base
salary and benefits under Section 4 hereof until the earlier of the date the
Executive becomes eligible for disability income under the Bank's long-term
disability or workers' compensation insurance plan or the date his employment
terminates.
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c. BY THE BANK FOR CAUSE. The Bank may terminate the Executive's employment
for Cause at any time upon notice to the Executive setting forth in reasonable
detail the nature of such Cause. The following, as determined by the Board in
its reasonable judgment, shall constitute Cause for termination: (1) the
Executive's refusal to perform, or negligence in the performance of, his duties
or responsibilities on behalf of the Bank and, if applicable, its affiliates;
(2) the Executive's fraud, embezzlement or other dishonesty with respect to the
Bank or any of its affiliates; (3) the Executive's gross misconduct, his
indictment in connection with any of the matters set forth in EXHIBIT C hereof,
or conviction or plea of no contest to, any felony or a crime of moral
turpitude, whether or not concerning matters which took place prior to or after
the Effective Time, and (4) the Executive becoming the subject of any formal or
informal criminal or regulatory investigation or a defendant in any civil
action, attended by publicity which might be likely to harm the reputation or
goodwill of the Bank. In the event of such termination, the Bank shall have no
further obligation to the Executive, other than for base salary earned through
the date of termination; PROVIDED, HOWEVER, that in the event that the Executive
is terminated by the Bank for cause by reason of the events set forth in clause
(4) of this Section 6(c), the Executive shall be entitled to receive an amount
equal to twelve (12) months' base salary at the rate in effect on the date of
termination, PLUS the amounts set forth in Section 6(d) hereof with respect to
benefits during the Post-Employment Health Coverage Period, payable in the
manner, and subject to execution of the Executive Release, each as set forth in
Section 6(d) hereof.
d. BY THE BANK OTHER THAN FOR CAUSE. The Bank may terminate the Executive's
employment other than for Cause upon notice to the Executive under this
subsection (d) or under subsection (g) below, whichever is applicable. In the
event of such termination prior to, or more than two years following, a Change
of Control and provided that the Executive executes the release of claims
attached hereto and marked "A" (the "EXECUTIVE RELEASE") within twenty-one (21)
days on the date of notice of termination of employment and does not timely
revoke the Executive Release, the Bank:
i. shall pay the Executive severance pay in an amount equal to
twelve (12) months' base salary at the rate in effect on the date of
termination, which the Executive may elect to receive (A) in a single
lump sum, payable within thirty (30) days following the effective date
of the Executive Release or (B) as salary continuation payable at the
Bank's regular payroll periods and in accordance with its regular
payroll practices commencing on the next regular payday immediately
following the effective date of the Executive Release, but retroactive
to the date of termination; and,
ii. at the Executive's election, (A) shall continue to pay, for
the period of twelve (12) months following termination of the
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Executive's employment or, if earlier, until the date the Executive is
covered under another employer's health plan that is comparable to
that of the Bank (the "POST-EMPLOYMENT HEALTH COVERAGE PERIOD"), that
share of the premium cost of Executive's participation and that of his
eligible dependents in the Bank's group health plan as it pays for
active employees of the Bank and their eligible dependents generally
OR (B) shall pay the Executive a single lump sum payment equal to the
amount that the Bank would have expended if participation had been
elected and continued for a period of twelve (12) months, which lump
sum shall be payable within thirty (30) days following the effective
date of the Executive Release, and the Executive and his eligible
dependents may exercise any rights they have under COBRA to continue
participation in the group health plan at their cost, effective as of
the date the Executive's employment terminates. Should the Executive
elect option (A) above, the period of any continued health coverage to
which the Executive and his eligible dependents may be entitled under
Sections 601-607 of ERISA and Section 4980B of the Internal Revenue
Code (collectively referred to as "COBRA") as a result of the
Executive's termination of employment will commence at the end of the
above-defined Post Employment Health Coverage Period. Notwithstanding
anything to the contrary contained herein, the Executive may only
elect option (A) directly above if the Executive elects to receive
payment under subparagraph (d)(i), directly above, in the form of
salary continuation.
e. BY THE EXECUTIVE FOR GOOD REASON. The Executive may terminate
employment hereunder for Good Reason upon notice to the Bank setting forth in
reasonable detail the nature of such Good Reason. The following shall constitute
Good Reason for termination by the Executive: (i) failure of the Bank to
continue the Executive as an Executive Vice President of the Bank; (ii) a change
adverse to the Executive in the Executive's primary reporting relationship;
(iii) material diminution in the nature or scope of the Executive's
responsibilities, duties or authority, (iv) material failure of the Bank to
provide the Executive base salary and benefits in accordance with the terms of
Section 4 hereof; or (v) a permanent transfer of the Executive to a work site
more than forty miles distant from his work site on the Effective Date. In the
event of termination in accordance with this Section (6)(e), the Bank shall
provide the Executive base salary and health insurance benefits in accordance
with Section 6(d) hereof, provided that the Executive executes the Executive
Release within twenty-one (21) days of his notice of termination of employment
and provided further that the Executive does not timely revoke the Executive
Release.
f. BY THE EXECUTIVE OTHER THAN FOR GOOD REASON. The Executive may resign
employment other than for Good Reason at any time upon one month's notice to the
Bank. In the event of such termination, the Bank shall have no further
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obligation to the Executive, other than for base salary earned through the date
of termination.
g. UPON A CHANGE OF CONTROL.
i. If a Change of Control (as defined in subsection (g)(ii) below)
occurs and, within two (2) years following such Change of Control, the Bank
terminates the Executive's employment other than for Cause, or the Executive
terminates his employment for Good Reason, and the Executive executes the
Executive Release within twenty-one (21) days of the date of notice of
termination of his employment and does not timely revoke it, then, in lieu of
any payment and benefits to which the Executive would otherwise be entitled
under Section 6(d) or 6(e) hereof, the Bank:
(1) shall pay the Executive an amount equal to twenty-four
(24) months' base salary at the rate in effect on the date of
termination of the Executive's employment, which the Executive may
elect to receive (A) in a single lump sum, payable within thirty (30)
days following the effective date of the Executive Release or (B) as
salary continuation payable at the Bank's regular payroll periods and
in accordance with its regular payroll practices commencing on the
next regular payday following the effective date of the Executive
Release, but retroactive to the date of termination; and
(2) at the Executive's election, (A) shall continue to pay,
for the period of twenty-four months following termination of the
Executive's employment or, if earlier, until the date the Executive is
covered under another employer's health plan that is comparable to
that of the Bank (the "POST-EMPLOYMENT HEALTH COVERAGE PERIOD"), that
share of the premium cost of Executive's participation and that of his
eligible dependents in the Bank's group health plan as it pays for
active employees of the Bank and their eligible dependents generally
OR (B) shall pay the Executive a single lump sum payment equal to the
amount that the Bank would have expended if participation had been
elected and continued for a period of twenty-four (24) months, which
lump sum shall be payable within thirty (30) days following the
effective date of the Executive Release, and the Executive and his
eligible dependents may exercise their rights under COBRA to continue
participation in the group health plan at their cost effective as of
the date his employment terminates. Should the Executive elect option
(A) above, the period of any continued health coverage to which the
Executive and his eligible dependents may be entitled under COBRA as a
result of the Executive's termination of employment will commence at
the end of the above-defined Post-Employment Health Coverage Period.
Notwithstanding anything to the contrary contained herein, the
Executive may only elect option (A) directly above if the Executive
elects to receive payment under subparagraph (g)(i)(1) in the form of
salary continuation.
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(3) Upon a Change of Control as defined in the Buyer's Stock
Compensation Plan as amended by the Buyer from time to time (the
"PLAN"), the vesting of any Buyer Restricted Common Stock ("RESTRICTED
STOCK") or stock options to purchase Buyer Common Stock granted to the
Executive and not yet exercised, expired, surrendered or canceled
shall be in accordance with the Plan.
(4) If in connection with a Change of Control as defined in
the Plan any other employees who hold stock options under the Plan or
Restricted Stock will have their options or Restricted Stock or both
cashed out, whether under the Plan or otherwise, the Executive shall
have the right to have all or any of such options or Restricted Stock
or both cashed out on the same basis and at the same time the options
and Restricted Stock of such other employees are cashed out.
ii. Except as otherwise provided with respect to subparagraphs
(g)(i)(3) and (g)(i)(4) directly above, a "Change of Control" shall be deemed to
have occurred if hereafter:
(A) any "person", as such term is used in Section 13(d) and
14(d) of the Securities Exchange Act of 1934 as amended (the "EXCHANGE
ACT") other than the Buyer or any of its subsidiaries or affiliates or
any trustee or other fiduciary holding securities under an employee
benefit plan of the Buyer or any of its subsidiaries or affiliates,
becomes a beneficial owner (within the meaning of Rule 13d-3, as
amended, as promulgated under the Exchange Act), directly or
indirectly, of securities representing twenty-five (25%) percent or
more of the combined voting power of the Buyer's then outstanding
securities; or
(B) during any period of two consecutive years (not
including any period prior to the Effective Date), individuals who at
the beginning of such period constitute the Board of Directors of the
Buyer or, any new director (other than a director designated by a
person who has entered into an agreement with the Buyer to effect a
transaction described in clause (A), (C) or (D) of this Section
6(g)(ii) whose election by the Board of Directors of the Buyer or
nomination for election by the Buyer's stockholders was approved by a
vote of at least two-thirds of the directors then still in office who
either were directors at the beginning of the period or whose election
or nomination for election was previously so approved, cease for any
reason to constitute at least a majority thereof; or
(C) there occurs a merger or consolidation of the Buyer with
any other corporation, other than a merger or consolidation which
would result in the voting securities of the Buyer outstanding
immediately prior
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thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) more
than eighty percent (80%) of the combined voting power of the voting
securities of the Buyer or such surviving entity outstanding
immediately after such merger or consolidation; provided, however,
that a merger or consolidation effected to implement a
recapitalization of the Buyer (or similar transaction) in which no
"person" (as hereinabove defined) acquires more than twenty-five
percent (25%) of the combined voting power of the Buyer's then
outstanding securities shall not constitute a Change of Control; or
(D) the stockholders of the Buyer approve a plan of a
complete liquidation of the Buyer or the Bank; or
(E) there occurs a closing of a sale or other disposition by
the Buyer of all or substantially all of the Buyer's or the Bank's
assets.
7. CONFIDENTIAL INFORMATION.
a. The Executive acknowledges that the Buyer, the Bank and their
affiliates continually develop Confidential Information, that the Executive may
develop Confidential Information for the Bank or its affiliates and that the
Executive may learn of Confidential Information during the course of employment
with the Bank or any of its affiliates. The Executive agrees to comply with the
policies and procedures of the Buyer for protecting Confidential Information and
agrees that he shall not disclose to any person, corporation or other entity,
except as required for the proper performance of his regular duties for the
Bank, and shall not use for his own benefit or that of another, any Confidential
Information obtained by the Executive incident to his employment or other
association with the Bank or any of its affiliates. The Executive understands
that this restriction will continue to apply throughout his employment and after
his employment terminates, regardless of the reason for such termination;
PROVIDED, HOWEVER, that the obligations contained in this Section 7 shall not
apply to any Confidential Information that becomes publicly known through no
fault of the Executive or that the Executive is otherwise required by law or
regulation to disclose.
b. As used in this Agreement, "Confidential Information" means any and
all information of the Buyer, the Bank and their affiliates that is not
generally known by others with whom any of them competes or does business, or
with whom any of them plans to compete or do business, including without
limitation any and all information concerning the identity and special needs of
the customers of the Buyer, the Bank and their affiliates and the people and
organizations with whom any of them has business relationships and those
relationships. Confidential Information also includes any information received
by the Buyer, the Bank or any of their affiliates from others with any
understanding, express or implied, that it will not be disclosed.
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8. NON-SOLICITATION. While the Executive is employed by the Bank and (a)
for a period of two years following the termination of his employment pursuant
to Sections 6(b), (c) or (f) hereof or (b) in the event of termination pursuant
to Sections 6(d), (e) or (g) hereof, for a period equal to the months of
severance pay provided the Executive thereunder:
(i) the Executive shall not, directly or indirectly, solicit or encourage
any customer of the Buyer, the Bank or any of their affiliates to terminate or
diminish substantially its relationship with the Buyer, the Bank or any of their
affiliates and
(ii) the Executive shall not, directly or indirectly, hire or attempt to
hire any executive personnel of the Buyer, the Bank or any of their affiliates
or solicit or encourage any executive personnel of the Buyer, the Bank or any of
their affiliates to discontinue employment with the Buyer, the Bank or any of
their affiliates.
For purposes of this Section 8, the term "months of severance pay" shall mean
the quotient of the total sum of payments to be made to the Executive under the
applicable termination provision divided by the Executive's base salary at the
monthly rate in effect on the date of termination.
9. REMEDIES. The Executive acknowledges that, if he were to breach any of
the provisions of Sections 7 or 8 of this Agreement, the harm to the Bank would
be irreparable. The Executive therefore agrees that, in addition to any other
remedies available to it, the Bank shall be entitled to obtain preliminary and
permanent injunctive relief against any such breach, without having to post
bond.
10. TAXES. All payments made to the Executive under this Agreement shall
be reduced by any tax or other amount required to be withheld by the Bank under
applicable law.
11. REDUCTIONS. Notwithstanding anything to the contrary contained in
this Agreement, (a) any and all payments and benefits to be provided to the
Executive hereunder are subject to reduction to the extent required by
applicable statutes, regulations, rules and directives of federal, state and
other governmental and regulatory bodies having jurisdiction over the Bank
and/or any of its affiliates and (b) the payments and benefits to which the
Executive would be entitled pursuant to Section 6(g) hereof or otherwise as a
result of a Change of Control shall be reduced to the maximum amount for which
the Bank will not be limited in its deduction pursuant to Section 28OG of the
Internal Revenue Code of 1986, as amended, or any successor provision. Any such
reduction shall be applied to the amounts due to the Executive in such manner as
the Executive may reasonably specify within thirty (30) days following notice
from the Bank of the need for such reduction or, if the Executive fails to so
specify timely, as determined by the Bank.
112
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12. ASSIGNMENT. The Bank may assign its rights and obligations under this
Agreement without the consent of the Executive in the event that the Bank shall
hereafter effect a reorganization, consolidate with, or merge into, any other
person, corporation or other entity or transfer all or substantially all of its
assets to any other person, corporation or other entity but only to such other
person, corporation or other entity. The Bank requires the personal services of
the Executive and he may not assign this Agreement. This Agreement shall inure
to the benefit of and be binding upon the Bank and the Executive and their
respective successors, executors, administrators, heirs and permitted assigns.
13. INDEMNIFICATION.
(a) The Bank shall indemnify the Executive to the maximum extent
permitted by law and regulation in connection with any liability, expense or
damage which the Executive incurs or to which the Executive is exposed as a
result of the Executive's employment and positions with the Bank or any
affiliate of the Bank, as contemplated by this Agreement, provided that the
Executive shall not be indemnified with respect to any matter as to which he
shall have been adjudicated in any proceeding not to have acted in good faith in
the reasonable belief that his action was in the best interest of the Bank. The
Bank hereby confirms that the occupancy of all offices and positions with any
subsidiary or affiliate of the Bank which in the future are occupied or held by
the Executive will have been so occupied or held at the request of and for the
benefit of the Bank for purposes of the Executive's entitlement to
indemnification under applicable provisions of the respective articles of
organization and/or other similar documents of the Bank; and
(b) The Bank shall, with respect to the Executive, honor and fulfill
the terms of the resolution of the Seller's Board of Directors dated October 15,
1996, with respect to the retention of counsel for the Executive and the
indemnification provisions for officers and directors which were set forth in
the Articles of Organization and By-Laws of the Seller prior to the Effective
Time with respect to acts and omissions taken prior to the Effective Time by
such officers and directors, but only to the extent not prohibited by federal
and Massachusetts law and regulations.
14. MISCELLANEOUS. This Agreement sets forth the entire agreement between
the Bank and the Executive and supersedes all prior communications, agreements
and understandings, whether written or oral, with respect to the Executive's
employment. The headings and captions contained herein are for convenience of
reference only and are not part of this Agreement. This Agreement may not be
modified or amended, and no breach of this Agreement shall be deemed to be
waived, unless agreed to in writing by the Executive and the Bank. This is a
Massachusetts contract and shall be governed by and construed in accordance with
the laws of The Commonwealth of Massachusetts.
113
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15. NOTICES. Any notices provided for in this Agreement shall be in
writing and shall be effective when delivered in person or deposited In the
United States mail, postage prepaid, and addressed to the Executive at his last
known address on the books of the Bank or, in the case of the Bank, at its main
office, attention of the Senior Vice President, Human Resources with a copy to
the General Counsel of the Bank.
114
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as an
instrument under seal as of the date first above written.
USTRUST
By:/s/ Neal F. Finnegan
------------------------------------
Name: Neal F. Finnegan
Title: President and Chief Executive
Officer
/s/ Thomas J. Kelly
------------------------------------
THOMAS J. KELLY
The undersigned hereby agrees to be bound by the provisions of this
Agreement.
UST CORP.
By:/s/ Neal F. Finnegan
------------------------------------
Name: Neal F. Finnegan
Title: President and Chief Executive
Officer
115
EXHIBIT B-2
FORM OF SELLER AFFILIATE LETTER ADDRESSED TO BUYER
[Date]
BUYER
Ladies and Gentlemen:
I have been advised that as of the date hereof I may be deemed to be an
"affiliate" of SOMERSET SAVINGS BANK, a Massachusetts stock savings bank
("SELLER"), as the term "affiliate" is (i) defined for purposes of paragraphs
(c) and (d) of Rule 145 of the Rules and Regulations (the "RULES and
REGULATIONS") of the Securities and Exchange Commission (the "COMMISSION") under
the Securities Act of 1933, as amended (the "Act"), and/or (ii) used in and for
purposes of Accounting Series Releases 130 and 135, as amended, of the
Commission. I have been further advised that pursuant to the terms of the
Affiliation Agreement and Plan of Reorganization, dated as of December 9, 1997
(the "MERGER AGREEMENT"), between UST CORP., a Massachusetts corporation
("BUYER"), and Seller, all of the assets and liabilities of the Seller will be
transferred to Mosaic Corp., a wholly-owned subsidiary of the Buyer, who will
direct all of such assets and liabilities to its wholly-owned subsidiary,
USTrust, pursuant to the merger of Seller with and into USTrust (the "MERGER"),
and that as a result of the Merger, I may receive shares of Buyer Common Stock
(as defined in the Merger Agreement) in exchange for shares of Seller Common
Stock (as defined in the Merger Agreement), owned by me.
I represent, warrant and covenant to Buyer that in the event I receive any
Buyer Common Stock pursuant to the Merger:
A. I shall not make any sale, transfer or other disposition of the
Buyer Common Stock in violation of the Act or the Rules and Regulations.
B. I have carefully read this letter and the Agreement and discussed
its requirements and other applicable limitations upon my ability to sell,
transfer or otherwise dispose of Buyer Common Stock to the extent I
believed necessary, with my counsel or counsel for Seller.
C. I have been advised that the issuance of Buyer Common Stock to me
pursuant to the Merger has been or will be registered with the Commission
under the Act on a Registration Statement on Form S-4.
116
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However, I have also been advised that, because, at the time the Merger is
or was submitted for a vote of the stockholders of Buyer, I may be deemed
to be or to have been an affiliate of Seller and the distribution by me of
the Buyer Common Stock will not have been registered under the Act. I agree
that I will not sell, transfer or otherwise dispose of Buyer Common Stock
issued to me in the Merger unless (i) such sale, transfer or other
disposition has been registered under the Act, (ii) such sale, transfer or
other disposition is made in conformity with the volume and other
limitations of Rule 145 promulgated by the Commission under the Act, or
(iii) in the opinion of counsel reasonably acceptable to Buyer, such sale,
transfer or other disposition is otherwise exempt from registration under
the Act.
D. I understand that Buyer is under no obligation to register the
sale, transfer or other disposition of the Buyer Common Stock by me or on
my behalf under the Act or to take any other action necessary in order to
make compliance with an exemption from such registration available.
E. I also understand that stop transfer instructions will be given to
Buyer's transfer agents with respect to the Buyer Common Stock and that
there will be placed on the certificates for the Buyer Common Stock issued
to me, or any substitutions therefor, a legend stating in substance:
"The securities represented by this certificate have been issued
in a transaction to which Rule 145 promulgated under the Securities
Act of 1933 applies and may be sold or otherwise transferred only in
compliance with the requirements of Rule 145 or pursuant to a
registration statement under said act or an exemption from such
registration."
F. I also understand that unless the transfer by me of my Buyer Common
Stock has been registered under the Act or is a sale made in conformity
with the provisions of Rule 145, Buyer reserves the right to put the
following legend on the certificates issued to my transferee:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933 and were acquired from a
person who received such shares in a transaction to which Rule 145
promulgated under the Securities Act of 1933 applies. The shares have
been acquired by the holder not with a view to, or for resale in
connection with, any distribution thereof within the meaning of
Securities Act of 1933 and may not be sold, pledged or otherwise
transferred except in accordance with
117
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an exemption from the registration requirements of the Securities Act
of 1933."
It is understood and agreed that this letter agreement shall terminate and
be of no further force and effect and the legends set forth in E or F, as the
case may be, above shall be removed by delivery of substitute certificates
without such legend, and the related stop transfer of restrictions shall be
lifted forthwith, if (i) any such shares of Buyer Common Stock shall have been
registered under the Securities Act for sale, transfer or other disposition by
me or on my behalf and are sold, transferred or otherwise disposed of, or (ii)
any such shares of Buyer Common Stock are sold in accordance with the provisions
of paragraphs (c), (e), (f) and (g) of Rule 144 promulgated under the Securities
Act, or (iii) I am not at the time an affiliate of Buyer and have been the
beneficial owner of the Buyer Common Stock for at least one year (or such other
period as may be prescribed by the Securities Act and the rules and regulations
promulgated thereunder), and Buyer has filed with the Commission all of the
reports it is required to file under the Securities Exchange Act of 1934, as
amended, during the preceding twelve months, or (iv) I am not and have not been
for at least three months an affiliate of Buyer and have been the beneficial
owner of the Buyer Common Stock for at least two years (or such period as may be
prescribed by the Securities Act and the rules and regulations promulgated
thereunder), or (v) Buyer shall have received a letter from the staff of the
Commission, or an opinion of counsel reasonably acceptable to Buyer, to the
effect that the stock transfer restrictions and the legend are not required.
I further represent to and covenant with Buyer that from the date that is
thirty (30) days prior to the Effective Time (as defined in the Merger
Agreement) I will not sell, transfer or otherwise dispose of, or reduce the risk
of ownership with respect to, shares of Seller Common Stock held by me and that
I will not sell, transfer or otherwise dispose of, or reduce the risk of
ownership with respect to, any shares of Buyer Common Stock received by me in
the Merger or other shares of Buyer Common Stock until after such time as
results covering at least thirty (30) days of combined operations of Buyer and
Seller have been published by Buyer, in the form of a quarterly earnings report,
an effective registration statement filed with the Commission, a report to the
Commission on Form 10-K, 10-Q, or 8-K, or any other public filing or
announcement which includes the results of at least 30 days of combined
operations.
Very truly yours,
By:_______________________________
Name:
118
Accepted this ____ day of
_____________, 1997, by
UST CORP.
By:_________________________________
Name:
Title: