<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
October 27, 1997
- -------------------------------------------------------------------------------
(Date of earliest event reported)
Peoples Heritage Financial Group, Inc.
- -------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Maine 0-16947 01-0437984
- -------------------------------------------------------------------------------
(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
P.O. Box 9540, One Portland Square, Portland, Maine 04112-9540
- -------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
(207) 761-8500
- -------------------------------------------------------------------------------
(Registrant's telephone number, including area code)
Not Applicable
- -------------------------------------------------------------------------------
(Former name, former address and former fiscal year,
if changed since last report)
<PAGE> 2
ITEM 5. OTHER EVENTS
On October 27, 1997, Peoples Heritage Financial Group, Inc. ("PHFG")
announced that it and CFX Corporation (the "Company") had entered into an
Agreement and Plan of Merger, dated as of October 27, 1997 (the "Agreement"),
which sets forth the terms and conditions pursuant to which the Company would
be merged with and into PHFG (the "Merger"). The Agreement provides, among
other things, that as a result of the Merger, each outstanding share of common
stock of the Company (subject to certain exceptions) will be converted into the
right to receive .667 newly-issued shares of PHFG's common stock. Consummation
of the Merger is subject to a number of conditions, including, but not limited
to, (i) the approval of the Agreement and the Merger by the shareholders of
both PHFG and the Company and (ii) the receipt of certain regulatory approvals.
A copy of the Agreement is filed as Exhibit 2.1 hereto and is incorporated
herein by reference.
In connection with the Agreement, PHFG and the Company entered into
Stock Option Agreements, dated as of October 27, 1997, pursuant to which the
Company granted PHFG an option (the "Company Option") to purchase up to 19.9%
(subject to adjustments set forth therein) of the Company's outstanding shares
of common stock at a purchase price of $22.69 per share (the "Company Stock
Option Agreement") and PHFG granted the Company an option (the "PHFG Option")
to purchase up to 10.0% (subject to adjustments set forth therein) of PHFG's
outstanding shares of common stock at a purchase price of $43.13 per share (the
"PHFG Stock Option Agreement"). The Company Option and the PHFG Option will
become exercisable upon the occurrence of certain events, as specified in the
applicable Stock Option Agreement, none of which has occurred as of October 27,
1997. Copies of the Company Stock Option Agreement and the PHFG Stock Option
Agreement are filed as Exhibits 10.1 and 10.2 hereto, respectively, and are
incorporated herein by reference.
In connection with the Merger, (i) the directors of the Company entered
into separate letter agreements with PHFG (the "Company Letter Agreements")
pursuant to which such persons generally agreed, among other things, to vote
their shares of Company common stock for approval of the Agreement and (ii) the
directors of PHFG entered into separate letter agreements with the Company (the
"PHFG Letter Agreements") pursuant to which such persons generally agreed, among
other things, to do the same with respect to their shares of PHFG common stock.
Copies of the forms of the Company Letter Agreement and the PHFG Letter
Agreement are filed as Exhibit 10.3 and 10.4 hereto, respectively, and are
incorporated herein by reference.
On the date of execution of the Agreement, PHFG and the Company issued
a joint press release announcing such execution, and on the same day PHFG made
a presentation to analysts to elaborate on the strategic rationale and
financial implications of the transaction. A copy of the joint press release
and certain forward-looking statements made by PHFG in connection with such
analysts presentation were filed as Exhibits 99.1 and 99.2,
<PAGE> 3
respectively, to a Current Report on Form 8-K filed by PHFG on October 27,
1997, and are incorporated herein by reference.
In connection with the execution of the Agreement, the Board of
Directors of PHFG also determined to terminate PHFG's open market purchase
program.
The foregoing descriptions of and references to all of the
above-mentioned agreements and documents are qualified in their entirety by
reference to the complete texts of the agreements and documents which are filed
herewith and incorporated by reference herein as exhibits to this Current
Report on Form 8-K.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) Not applicable.
(b) Not applicable.
(c) The following exhibits are included with this Report:
Exhibit 2.1 Agreement and Plan of Merger, dated
as of October 27, 1997, between PHFG
and the Company
Exhibit 10.1 Stock Option Agreement, dated as of
October 27, 1997, between the Company
(as issuer) and PHFG (as grantee)
Exhibit 10.2 Stock Option Agreement, dated as of
October 27, 1997, between PHFG (as
issuer) and the Company (as grantee)
Exhibit 10.3 Form of letter agreement between
directors of CFX and PHFG
Exhibit 10.4 Form of letter agreement between
directors of PHFG and the Company
Exhibit 99.1 Press Release, dated October 27,
1997(1)
Exhibit 99.2 Portions of Analysts Presentation(1)
- -------------------------
(1) Incorporated by reference to the Current Report on Form 8-K filed by
PHFG on October 27, 1997.
3
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PEOPLES HERITAGE FINANCIAL GROUP, INC.
By: /s/ Peter J. Verrill
------------------------------------------
Name: Peter J. Verrill
Title: Executive Vice President,
Chief Operating Officer, Chief
Financial Officer and Treasurer
Date: November 3, 1997
4
<PAGE> 1
EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
BETWEEN
PEOPLES HERITAGE FINANCIAL GROUP, INC.,
AND
CFX CORPORATION
DATED AS OF OCTOBER 27, 1997
<PAGE> 2
AGREEMENT AND PLAN OF MERGER
TABLE OF CONTENTS
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II THE MERGER . . . . . . . . . . . . . . . . . . . . . . . . 8
2.1 The Merger . . . . . . . . . . . . . . . . . . . . . . 8
2.2 Effective Time; Closing . . . . . . . . . . . . . . . 8
2.3 Treatment of Capital Stock . . . . . . . . . . . . . . 9
2.4 Shareholder Rights; Stock Transfers . . . . . . . . . 9
2.5 Fractional Shares . . . . . . . . . . . . . . . . . . 10
2.6 Dissenting Shares . . . . . . . . . . . . . . . . . . 10
2.7 Exchange Procedures . . . . . . . . . . . . . . . . . 10
2.8 Anti-Dilution Provisions . . . . . . . . . . . . . . . 12
2.9 Options . . . . . . . . . . . . . . . . . . . . . . . 12
2.10 Additional Actions . . . . . . . . . . . . . . . . . . 13
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY . . . . . . 13
3.1 Capital Structure . . . . . . . . . . . . . . . . . . 13
3.2 Organization, Standing and Authority of the Company . 13
3.3 Ownership of the Company Subsidiaries . . . . . . . . 14
3.4 Organization, Standing and Authority of the Company
Subsidiaries . . . . . . . . . . . . . . . . . . . . 14
3.5 Authorized and Effective Agreement . . . . . . . . . . 15
3.6 Securities Documents and Regulatory Reports . . . . . 16
3.7 Financial Statements . . . . . . . . . . . . . . . . . 17
3.8 Material Adverse Change . . . . . . . . . . . . . . . 17
3.9 Environmental Matters . . . . . . . . . . . . . . . . 18
3.10 Tax Matters . . . . . . . . . . . . . . . . . . . . . 18
3.11 Legal Proceedings . . . . . . . . . . . . . . . . . . 19
3.12 Compliance with Laws . . . . . . . . . . . . . . . . . 19
3.13 Certain Information . . . . . . . . . . . . . . . . . 20
3.14 Employee Benefit Plans . . . . . . . . . . . . . . . . 21
3.15 Certain Contracts . . . . . . . . . . . . . . . . . . 22
3.16 Brokers and Finders . . . . . . . . . . . . . . . . . 23
3.17 Insurance . . . . . . . . . . . . . . . . . . . . . . 23
3.18 Properties . . . . . . . . . . . . . . . . . . . . . . 23
3.19 Labor . . . . . . . . . . . . . . . . . . . . . . . . 24
3.20 Loans; Nonperforming and Classified Assets . . . . . . 24
3.21 Administration of Fiduciary Accounts . . . . . . . . . 25
3.22 Derivative Transactions . . . . . . . . . . . . . . . 25
3.23 Required Vote; Antitakeover Provisions . . . . . . . . 25
3.24 Fairness Opinion . . . . . . . . . . . . . . . . . . . 26
3.25 Accounting for the Merger; Reorganization . . . . . . 26
i
<PAGE> 3
3.26 Disclosures . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PHFG . . . . . . . . . . 26
4.1 Capital Structure . . . . . . . . . . . . . . . . . . 26
4.2 Organization, Standing and Authority of PHFG . . . . . 27
4.3 Ownership of the PHFG Subsidiaries . . . . . . . . . . 27
4.4 Organization, Standing and Authority of the PHFG
Subsidiaries . . . . . . . . . . . . . . . . . . . . 27
4.5 Authorized and Effective Agreement . . . . . . . . . . 28
4.6 Securities Documents and Regulatory Reports . . . . . 29
4.7 Financial Statements . . . . . . . . . . . . . . . . . 30
4.8 Material Adverse Change . . . . . . . . . . . . . . . 30
4.9 Environmental Matters . . . . . . . . . . . . . . . . 30
4.10 Tax Matters . . . . . . . . . . . . . . . . . . . . . 31
4.11 Legal Proceedings . . . . . . . . . . . . . . . . . . 32
4.12 Compliance with Laws . . . . . . . . . . . . . . . . . 32
4.13 Certain Information . . . . . . . . . . . . . . . . . 33
4.14 Employee Benefit Plans . . . . . . . . . . . . . . . . 33
4.15 Certain Contracts . . . . . . . . . . . . . . . . . . 35
4.16 Brokers and Finders . . . . . . . . . . . . . . . . . 35
4.17 Insurance . . . . . . . . . . . . . . . . . . . . . . 35
4.18 Properties . . . . . . . . . . . . . . . . . . . . . . 35
4.19 Labor . . . . . . . . . . . . . . . . . . . . . . . . 36
4.20 Loans . . . . . . . . . . . . . . . . . . . . . . . . 36
4.21 Administration of Fiduciary Accounts . . . . . . . . . 36
4.22 Required Vote; Ownership of Company Common Stock . . . 37
4.23 Fairness Opinion . . . . . . . . . . . . . . . . . . . 37
4.24 Accounting for the Merger; Reorganization . . . . . . 37
4.25 Disclosures . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE V COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . 38
5.1 Reasonable Best Efforts . . . . . . . . . . . . . . . 38
5.2 Shareholder Meetings . . . . . . . . . . . . . . . . . 38
5.3 Regulatory Matters . . . . . . . . . . . . . . . . . . 38
5.4 Investigation and Confidentiality . . . . . . . . . . 39
5.5 Press Releases . . . . . . . . . . . . . . . . . . . . 40
5.6 Business of the Parties . . . . . . . . . . . . . . . 40
5.7 Current Information . . . . . . . . . . . . . . . . . 45
5.8 Indemnification; Insurance . . . . . . . . . . . . . . 45
5.9 Employee Benefit Plans and Arrangements . . . . . . . 47
5.10 Stock Exchange Listing . . . . . . . . . . . . . . . . 48
5.11 The Bank Mergers . . . . . . . . . . . . . . . . . . . 48
5.12 Affiliates; Restrictions on Resale . . . . . . . . . . 48
5.13 Disclosure Supplements . . . . . . . . . . . . . . . . 49
5.14 Failure to Fulfill Conditions . . . . . . . . . . . . 49
ii
<PAGE> 4
ARTICLE VI CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . 49
6.1 Conditions Precedent - PHFG and the Company . . . . . 49
6.2 Conditions Precedent - The Company . . . . . . . . . . 51
6.3 Conditions Precedent - PHFG . . . . . . . . . . . . . 52
ARTICLE VII TERMINATION, WAIVER AND AMENDMENT . . . . . . . . . . . . 53
7.1 Termination . . . . . . . . . . . . . . . . . . . . . 53
7.2 Effect of Termination . . . . . . . . . . . . . . . . 57
7.3 Survival of Representations, Warranties and
Covenants . . . . . . . . . . . . . . . . . . . . . . 57
7.4 Waiver . . . . . . . . . . . . . . . . . . . . . . . . 58
7.5 Amendment or Supplement . . . . . . . . . . . . . . . 58
ARTICLE VIII MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . 58
8.1 Expenses . . . . . . . . . . . . . . . . . . . . . . . 58
8.2 Entire Agreement . . . . . . . . . . . . . . . . . . . 58
8.3 Assignment; Successors . . . . . . . . . . . . . . . . 59
8.4 Notices . . . . . . . . . . . . . . . . . . . . . . . 59
8.5 Alternative Structure . . . . . . . . . . . . . . . . 60
8.6 Interpretation . . . . . . . . . . . . . . . . . . . . 60
8.7 Counterparts . . . . . . . . . . . . . . . . . . . . . 60
8.8 Governing Law . . . . . . . . . . . . . . . . . . . . 60
Exhibit A Form of Amended and Restated Articles of Incorporation
of the Surviving Corporation
Exhibit B Matters to be covered by Opinion(s) of Counsel to PHFG
Exhibit C Matters to be covered by Opinion(s) of Counsel to the Company
iii
<PAGE> 5
AGREEMENT AND PLAN OF MERGER
Agreement and Plan of Merger (the "Agreement"), dated as of October
27, 1997, between Peoples Heritage Financial Group, Inc. ("PHFG"), a Maine
corporation, and CFX Corporation (the "Company"), a New Hampshire corporation.
W I T N E S E T H:
WHEREAS, the Boards of Directors of PHFG and the Company have
determined that it is in the best interests of their respective companies and
their shareholders to consummate the business combination transactions provided
for herein; and
WHEREAS, the parties desire to provide for certain undertakings,
conditions, representations, warranties and covenants in connection with the
transactions contemplated hereby; and
WHEREAS, as a condition and inducement to PHFG's willingness to enter
into this Agreement, the Company is concurrently entering into a Stock Option
Agreement with PHFG (the "Company Stock Option Agreement"), pursuant to which
the Company is granting to PHFG the option to purchase shares of Company Common
Stock (as defined herein) under certain circumstances; and
WHEREAS, as a condition and inducement to the Company's willingness to
enter into this Agreement, PHFG is concurrently entering into a Stock Option
Agreement with the Company (the "PHFG Stock Option Agreement"), pursuant to
which PHFG is granting to the Company the option to purchase shares of PHFG
Common Stock (as defined herein) under certain circumstances;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, the parties hereto do hereby agree
as follows:
<PAGE> 6
ARTICLE I
DEFINITIONS
The following terms shall have the meanings ascribed to them for all
purposes of this Agreement.
"Acquired Companies" shall mean Orange Savings Bank, The Safety Fund
Corporation, Community Bankshares, Inc. and Portsmouth Bank Shares, Inc.
"Affiliate" shall have the meaning specified in Section 5.12(a)
hereof.
"Articles of Merger" shall have the meaning set forth in Section 2.2
hereof.
"Bank Mergers" shall have the meaning set forth in Section 5.11
hereof.
"Bank Merger Agreements" shall have the meaning set forth in Section
5.11 hereof.
"BHCA" shall mean the Bank Holding Company Act of 1956, as amended.
"BIF" means the Bank Insurance Fund administered by the FDIC.
"Central Fund" shall mean the Mutual Savings Central Fund, Inc. of the
Commonwealth of Massachusetts.
"Certificates" shall have the meaning set forth in Section 2.4 hereof.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Commission" shall mean the Securities and Exchange Commission.
"Company Banks" shall mean the Company Massachusetts Banks and the
Company New Hampshire Bank.
"Company Common Stock" shall mean the common stock, par value $.66 2/3
per share, of the Company.
"Company Employee Plans" shall have the meaning set forth in Section
3.14(a) hereof.
"Company Financial Statements" shall mean (i) the consolidated
statements of financial condition (including related notes and schedules, if
any) of the Company as of December 31, 1996, 1995 and 1994 and the consolidated
statements of operations, shareholders' equity and cash flows (including
related notes and schedules, if any) of the Company for each of the three years
ended December 31, 1996, 1995 and 1994 as filed by
2
<PAGE> 7
the Company in its Securities Documents, and (ii) the consolidated statements
of financial condition of the Company (including related notes and schedules,
if any) and the consolidated statements of operations, shareholders' equity and
cash flows (including related notes and schedules, if any) of the Company
included in the Securities Documents filed by the Company with respect to the
quarterly and annual periods ended subsequent to December 31, 1996.
"Company Massachusetts Banks" shall mean Orange Savings Bank, a
Massachusetts-chartered savings bank and a wholly-owned subsidiary of the
Company, and Safety Fund National Bank, a national bank and a wholly-owned
subsidiary of the Company.
"Company New Hampshire Bank" shall mean CFX Bank, a New
Hampshire-chartered savings bank and a wholly-owned subsidiary of the Company.
"Company Options" shall mean options to purchase shares of Company
Common Stock granted pursuant to the Company Stock Option Plans.
"Company Preferred Stock" shall mean the Preferred Stock, $1.00 par
value per share, of the Company.
"Company Stock Option Plans" shall mean (i) the Company's 1986 Stock
Option Plan, 1995 Stock Option Plan and 1997 Long-Term Incentive Plan, in each
case as amended as of the date hereof, and (ii) stock option plans of the
Acquired Companies under which the Company has assumed options that now
represent the right to purchase shares of Company Common Stock in connection
with the acquisition of such companies, in each case as amended as of the date
hereof.
"Company Stock Purchase Plan" shall mean the Company's Amended and
Restated 1992 Employee Stock Purchase Plan, as amended as of the date hereof.
"DOJ" shall mean the United States Department of Justice.
"Effective Time" shall mean the date and time specified pursuant to
Section 2.2 hereof as the effective time of the Merger.
"Environmental Claim" means any written notice from any Governmental
Entity or third party alleging potential liability (including, without
limitation, potential liability for investigatory costs, cleanup costs,
governmental response costs, natural resources damages, property damages,
personal injuries or penalties) arising out of, based on, or resulting from the
presence, or release into the environment, of any Materials of Environmental
Concern.
"Environmental Laws" means any federal, state or local law, statute,
ordinance, rule, regulation, code, license, permit, authorization, approval,
consent, order, judgment, decree, injunction or agreement with any governmental
entity relating to (1) the protection,
3
<PAGE> 8
preservation or restoration of the environment (including, without limitation,
air, water vapor, surface water, groundwater, drinking water supply, surface
soil, subsurface soil, plant and animal life or any other natural resource),
and/or (2) the use, storage, recycling, treatment, generation, transportation,
processing, handling, labeling, production, release or disposal of Materials of
Environment Concern. The term Environmental Law includes without limitation
(1) the Comprehensive Environmental Response, Compensation and Liability Act,
as amended, 42 U.S.C. Section 9601, et seq; the Resource Conservation and
Recovery Act, as amended, 42 U.S.C. Section 6901, et seq; the Clean Air Act, as
amended, 42 U.S.C. Section 7401, et seq; the Federal Water Pollution Control
Act, as amended, 33 U.S.C. Section 1251, et seq; the Toxic Substances Control
Act, as amended, 15 U.S.C. Section 9601, et seq; the Emergency Planning and
Community Right to Know Act, 42 U.S.C. Section 1101, et seq; the Safe Drinking
Water Act, 42 U.S.C. Section 300f, et seq; and all comparable state and local
laws, and (2) any common law (including without limitation common law that may
impose strict liability) that may impose liability or obligations for injuries
or damages due to, or threatened as a result of, the presence of or exposure to
any Materials of Environmental Concern.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Ratio" shall have the meaning set forth in Section 2.3(b)
hereof.
"FDIA" shall mean the Federal Deposit Insurance Act, as amended.
"FDIC" shall mean the Federal Deposit Insurance Corporation or any
successor thereto.
"FHLB" shall mean Federal Home Loan Bank.
"Form S-4" shall mean the registration statement on Form S-4 (or on
any successor or other appropriate form) to be filed by PHFG in connection with
the issuance of shares of PHFG Common Stock pursuant to the Merger, including
the Proxy Statement which forms a part thereof, as amended and supplemented.
"FRB" means the Board of Governors of the Federal Reserve System or
any successor thereto.
"Governmental Entity" shall mean any federal or state court,
administrative agency or commission or other governmental authority or
instrumentality.
"Loan" shall have the meaning set forth in Section 3.20(a) hereof.
4
<PAGE> 9
"Massachusetts Bank Commissioner" shall mean the Bank Commissioner of
the Commonwealth of Massachusetts.
"Massachusetts Board" shall mean the Massachusetts Board of Bank
Incorporation.
"Material Adverse Effect" shall mean, with respect to PHFG or the
Company, respectively, any effect that (i) is material and adverse to the
financial condition, results of operations or business of PHFG and its
Subsidiaries taken as whole and the Company and its Subsidiaries taken as a
whole, respectively, or (ii) materially impairs the ability of the Company,
PHFG or any of their respective banking subsidiaries to consummate the
transactions contemplated by this Agreement and the Bank Merger Agreements,
provided, however, that Material Adverse Effect shall not be deemed to include
(a) the impact of changes in laws and regulations or interpretations thereof
that are generally applicable to the banking industry or generally accepted
accounting principles that are generally applicable to the banking industry,
(b) reasonable expenses incurred in connection with the transactions
contemplated hereby and (c) actions or omissions of a party (or any of its
Subsidiaries) taken with the prior informed written consent of the other party
in contemplation of the transactions contemplated hereby.
"Materials of Environmental Concern" means pollutants, contaminants,
wastes, toxic substances, petroleum and petroleum products and any other
materials regulated under Environmental Laws.
"MBCA" shall mean the Maine Business Corporation Act, as amended.
"Merger" shall mean the merger of the Company with and into PHFG
pursuant to the terms hereof.
"MHPF" shall mean the Massachusetts Housing Partnership Fund.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"New Hampshire Bank Commissioner" shall mean the Bank Commissioner of
the State of New Hampshire.
"NHBCA" shall mean the New Hampshire Business Corporation Act, as
amended.
"OCC" shall mean the Office of the Comptroller of the Currency of the
U.S. Department of the Treasury, or any successor thereto.
"OTS" shall mean the Office of Thrift Supervision of the U.S.
Department of the Treasury, or any successor thereto.
5
<PAGE> 10
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor thereto.
"PHFG Banks" shall mean the PHFG Maine Bank, the PHFG New Hampshire
Bank and the PHFG Massachusetts Bank.
"PHFG Capital Securities" shall mean the 9.06% Capital Securities
issued by Peoples Heritage Capital Trust I and any similar capital securities
which may be issued by a trust subsidiary of PHFG in the future.
"PHFG Common Stock" shall mean the common stock, par value $.01 per
share, of PHFG and, unless the context otherwise requires, related PHFG Rights.
"PHFG Employee Plans" shall have the meaning set forth in Section
4.14(a) hereof.
"PHFG Employee Stock Benefit Plans" shall mean the following employee
benefit plans of PHFG: 1986 Stock Option and Stock Appreciation Rights Plan,
1986 Employee Stock Purchase Plan, Thrift Incentive Plan, Profit Sharing
Employee Stock Ownership Plan, Restricted Stock Plan for Non-Employee
Directors, Amended and Restated 1995 Stock Option Plan for Non-Employee
Directors, 1996 Equity Incentive Plan and Dividend Reinvestment Plan.
"PHFG Financial Statements" shall mean (i) the consolidated balance
sheets (including related notes and schedules, if any) of PHFG as of December
31, 1996, 1995 and 1994 and the consolidated statements of income,
shareholders' equity and cash flows (including related notes and schedules, if
any) of PHFG for each of the three years ended December 31, 1996, 1995 and 1994
as filed by PHFG in its Securities Documents, and (ii) the consolidated balance
sheets of PHFG (including related notes and schedules, if any) and the
consolidated statements of income, shareholders' equity and cash flows
(including related notes and schedules, if any) of PHFG included in the
Securities Documents filed by PHFG with respect to the quarterly and annual
periods ended subsequent to December 31, 1996.
"PHFG Maine Bank" shall mean Peoples Heritage Savings Bank, a
Maine-chartered universal bank and a wholly-owned subsidiary of PHFG.
"PHFG Massachusetts Bank" shall mean Family Bank, F.S.B., a
federally-chartered savings bank and a wholly-owned subsidiary of PHFG.
"PHFG New Hampshire Bank" shall mean Bank of New Hampshire, a New
Hampshire-chartered commercial bank and a wholly-owned subsidiary of PHFG.
"PHFG Preferred Stock" shall mean the shares of preferred stock, par
value $.01 per share, of PHFG.
6
<PAGE> 11
"PHFG Rights" shall mean the rights attached to shares of PHFG Common
Stock pursuant to PHFG Rights Agreement.
"PHFG Rights Agreement" shall mean the Stockholder Rights Agreement,
dated as of September 12, 1989, between PHFG and American Stock Transfer &
Trust Company, in its capacity as Rights Agent.
"Previously Disclosed" shall mean disclosed (i) in a letter dated the
date hereof delivered from the disclosing party to the other party specifically
referring to the appropriate section of this Agreement and describing in
reasonable detail the matters contained therein, or (ii) a letter dated after
the date hereof from the disclosing party specifically referring to this
Agreement and describing in reasonable detail the matters contained therein and
delivered by the other party pursuant to Section 5.13 hereof.
"Proxy Statement" shall mean the joint prospectus/proxy statement
contained in the Form S-4, as amended or supplemented, and to be delivered to
shareholders of PHFG and the Company in connection with the solicitation of
their approval of this Agreement and the transactions contemplated hereby.
"Rights" shall mean warrants, options, rights, convertible securities
and other arrangements or commitments which obligate an entity to issue or
dispose of any of its capital stock or other ownership interests.
"SAIF" means the Savings Association Insurance Fund administered by
the FDIC.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Securities Documents" shall mean all reports, offering circulars,
proxy statements, registration statements and all similar documents filed, or
required to be filed, pursuant to the Securities Laws.
"Securities Laws" shall mean the Securities Act; the Exchange Act; the
Investment Company Act of 1940, as amended; the Investment Advisers Act of
1940, as amended; the Trust Indenture Act of 1939, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Subsidiary" and "Significant Subsidiary" shall have the respective
meanings set forth in Rule 1-02 of Regulation S-X of the Commission.
"Superintendent" shall mean the Superintendent of the Bureau of
Banking of the State of Maine.
"Surviving Corporation" shall have the meaning specified in Section
2.1 hereof.
Other terms used herein are defined in the preamble and elsewhere in
this Agreement.
7
<PAGE> 12
ARTICLE II
THE MERGER
2.1 The Merger
(a) Subject to the terms and conditions of this Agreement, at the
Effective Time (as defined in Section 2.2 hereof), the Company shall be merged
with and into PHFG (the "Merger") in accordance with the applicable provisions
of the MBCA and the NHBCA. PHFG shall be the surviving corporation of the
Merger (hereinafter sometimes called the Surviving Corporation) and shall
continue its corporate existence under the laws of the State of Maine. The
name of the Surviving Corporation shall be "Peoples Heritage Financial Group,
Inc." Upon consummation of the Merger, the separate corporate existence of the
Company shall terminate.
(b) From and after the Effective Time, the Merger shall have the
effects set forth in Section 905 of the MBCA and Section 293-A:11.06 of the
NHBCA.
(c) Upon consummation of the Merger, (i) the Articles of
Incorporation of PHFG shall be substantially in the form of the Amended and
Restated Articles of Incorporation attached hereto as Exhibit A, until altered,
amended or repealed in accordance with their terms and applicable law, and (ii)
the Bylaws of PHFG shall be the same as the Bylaws of PHFG immediately prior to
the Effective Time, with the exception of such changes thereto as may be
adopted by PHFG to reflect the Merger, which Bylaws shall remain in effect
until altered, amended or repealed in accordance with their terms and
applicable law.
(d) Upon consummation of the Merger, (i) the directors of PHFG
shall be (x) up to 13 of the persons serving as director of PHFG immediately
prior to the Effective Time if the Effective Time is prior to the annual
meeting of stockholders of PHFG in 1998 and up to 12 of the persons serving as
director of PHFG immediately prior to the Effective Time if the Effective Time
is after such annual meeting of stockholders and (y) five persons serving as
director of the Company immediately prior to the Effective Time (including
Peter J. Baxter) designated by the Company and who both meet the director
qualification requirements set forth in the Bylaws of PHFG and are otherwise
acceptable to PHFG and (ii) the executive officers of PHFG shall be the persons
serving as executive officers of PHFG immediately prior to the Effective Time,
except that Peter J. Baxter shall be Vice Chairman of the Board of Directors
and an Executive Vice President and Chief Operating Officer of PHFG. The
directors and executive officers of PHFG at the Effective Time shall serve for
such terms as are specified in or determined pursuant to the Articles of
Incorporation and Bylaws of PHFG.
2.2 Effective Time; Closing
The Merger shall become effective upon the occurrence of the filing of
(i) articles of merger with the Secretary of State of the State of Maine
pursuant to the MBCA and (ii)
8
<PAGE> 13
articles of merger with the Secretary of State of the State of New Hampshire
pursuant to the NHBCA, unless a later date and time is specified as the
effective time (the "Effective Time") in such articles of merger (collectively,
the "Articles of Merger"). A closing (the "Closing") shall take place
immediately prior to the Effective Time at 10:00 a.m., Eastern Time, on the
fifth business day following the satisfaction or waiver, to the extent
permitted hereunder, of the conditions to the consummation of the Merger
specified in Article VI of this Agreement (other than the delivery of
certificates, opinions and other instruments and documents to be delivered at
the Closing), at the principal executive offices of PHFG in Portland, Maine, or
at such other place, at such other time, or on such other date as the parties
may mutually agree upon. At the Closing, there shall be delivered to PHFG and
the Company the opinions, certificates and other documents required to be
delivered under Article VI hereof.
2.3 Treatment of Capital Stock
Subject to the provisions of this Agreement, at the Effective Time,
automatically by virtue of the Merger and without any action on the part of any
shareholder:
(a) each share of PHFG Common Stock issued and outstanding
immediately prior to the Effective Time shall be unchanged and shall remain
issued and outstanding; and
(b) subject to Sections 2.5 and 2.6 hereof, each share of Company
Common Stock issued and outstanding immediately prior to the Effective Time
(other than shares held by PHFG, the Company or any of their respective
wholly-owned Subsidiaries other than in a fiduciary capacity that are
beneficially owned by third parties or as a result of debts previously
contracted, which shall be cancelled and retired without consideration) shall
become and be converted into the right to receive .667 shares of PHFG Common
Stock (subject to possible adjustment as set forth in Sections 2.8 and 7.1(h)
hereof, the "Exchange Ratio").
2.4 Shareholder Rights; Stock Transfers
At the Effective Time, each holder of a certificate or certificates
representing outstanding shares of Company Common Stock (the "Certificates")
shall cease to have any rights with respect thereto, except the right to
receive, upon the surrender of any such Certificates in accordance with Section
2.7 hereof, certificates representing the number of whole shares of PHFG
Common Stock, and any cash in lieu of a fractional share interest, into which
such shares of Company Common Stock shall have been converted pursuant to
Section 2.3 hereof, without interest. After the Effective Time, there shall be
no further registration of transfers on the stock transfer books of the Company
of shares of Company Common Stock which were outstanding immediately prior to
the Effective Time. If, after the Effective Time, Certificates are presented
to PHFG or the Exchange Agent for any reason, they shall be canceled and
exchanged as provided in Sections 2.6 and 2.7 hereof, as applicable, except as
otherwise provided by law.
9
<PAGE> 14
2.5 Fractional Shares
(a) No certificates or scrip representing fractional shares of
PHFG Common Stock shall be issued upon the surrender for exchange of a
Certificate or Certificates, and such fractional share interests shall not
entitle the owner thereof to vote or to any other rights as a shareholder of
PHFG.
(b) Notwithstanding any other provision of this Agreement, each
holder of shares of Company Common Stock converted into shares of PHFG Common
Stock pursuant to the Merger who would otherwise have been entitled to receive
a fraction of a share of PHFG Common Stock (after taking into account all
Certificates delivered by such holder) shall, at the time of surrender of the
Certificate or Certificates representing such holder's shares of Company Common
Stock receive an amount of cash (without interest) equal to the product arrived
at by multiplying such fraction of a share of PHFG Common Stock by the closing
price of a share of PHFG Common Stock on the Nasdaq Stock Market's National
Market on the business day preceding the Effective Time (as reported in The
Wall Street Journal, or if not reported therein, in another authoritative
source), rounded to the nearest whole cent.
2.6 Dissenting Shares
Each outstanding share of Company Common Stock the holder of which has
perfected his right to dissent under the NHBCA and has not effectively
withdrawn or lost such right as of the Effective Time (the "Dissenting Shares")
shall not be converted into or represent a right to receive shares of PHFG
Common Stock hereunder, and the holder thereof shall be entitled only to such
rights as are granted by the NHBCA. The Company shall give PHFG prompt notice
upon receipt by the Company of any such written demands for payment of the fair
value of such shares of Company Common Stock and of withdrawals of such demands
and any other instruments provided pursuant to the NHBCA (any shareholder duly
making such demand being hereinafter called a "Dissenting Shareholder"). If
any Dissenting Shareholder shall effectively withdraw or lose (through failure
to perfect or otherwise) his right to such payment at any time, such holder's
shares of Company Common Stock shall be converted into the right to receive
shares of PHFG Common Stock in accordance with the applicable provisions of
this Agreement. Any payments made in respect of Dissenting Shares shall be
made by the Surviving Corporation.
2.7 Exchange Procedures
(a) At or after the Effective Time, each holder of a Certificate
or Certificates, upon surrender of the same to an agent, duly appointed by PHFG
(the "Exchange Agent"), shall be entitled to receive in exchange therefor a
certificate or certificates representing the number of whole shares of PHFG
Common Stock into which the shares of Company Common Stock theretofore
represented by the Certificate or Certificates so surrendered shall have been
converted as provided in Section 2.3(b) hereof. As promptly as practicable
10
<PAGE> 15
after the Effective Time, the Exchange Agent shall mail to each holder of
record of an outstanding Certificate which is to be exchanged for PHFG Common
Stock as provided in Section 2.3 hereof a form of letter of transmittal (which
shall specify that delivery shall be effected, and risk of loss and title to
such Certificate shall pass, only upon delivery of such Certificate to the
Exchange Agent) advising such holder of the terms of the exchange effected by
the Merger and of the procedure for surrendering to the Exchange Agent such
Certificate in exchange for a certificate or certificates evidencing PHFG
Common Stock or cash in lieu of any fractional share interest. Notwithstanding
anything in this Agreement to the contrary, Certificates surrendered for
exchange by any Affiliate of the Company (as defined in Section 5.12(a) hereof)
shall not be exchanged for certificates representing shares of PHFG Common
Stock in accordance with the terms of this Agreement until PHFG has received a
written agreement from such person as specified in Section 5.12(b).
(b) No holder of a Certificate shall be entitled to receive any
dividends in respect of the PHFG Common Stock into which such shares shall have
been converted by virtue of the Merger until the certificate representing such
shares is surrendered in exchange for a certificate or certificates
representing shares of PHFG Common Stock. In the event that dividends are
declared and paid by PHFG in respect of PHFG Common Stock after the Effective
Time but prior to any holder's surrender of Certificates, dividends payable to
such holder in respect of shares of PHFG Common Stock not then issued shall
accrue (without interest). Any such dividends shall be paid (without interest)
upon surrender of the Certificates. PHFG shall be entitled, after the
Effective Time, to treat Certificates as evidencing ownership of the number of
whole shares of PHFG Common Stock into which the shares of Company Common Stock
represented by such Certificates shall have been converted pursuant to this
Agreement, notwithstanding the failure on the part of the holder thereof to
surrender such Certificates.
(c) PHFG shall not be obligated to deliver a certificate or
certificates representing shares of PHFG Common Stock to which a holder of
Company Common Stock would otherwise be entitled as a result of the Merger
until such holder surrenders a Certificate or Certificates for exchange as
provided in this Section 2.7, or, in default thereof, an appropriate affidavit
of loss and indemnity agreement and/or a bond in an amount as may be reasonably
required in each case by PHFG. If any certificate evidencing shares of PHFG
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
and otherwise in proper form for transfer and that the person requesting such
exchange pay to the Exchange Agent any transfer or other tax required by reason
of the issuance of a certificate for shares of PHFG Common Stock in any name
other than that of the registered holder of the Certificate surrendered or
otherwise establish to the satisfaction of the Exchange Agent that such tax has
been paid or is not payable.
11
<PAGE> 16
2.8 Anti-Dilution Provisions
If, between the date hereof and the Effective Time, the shares of PHFG
Common Stock shall be changed into a different number or class of shares by
reason of any reclassification, recapitalization, split-up, combination,
exchange of shares or readjustment, or a stock dividend thereon shall be
declared with a record date within said period, the Exchange Ratio shall be
adjusted accordingly.
2.9 Options
(a) At the Effective Time, each Company Option which is then
outstanding, whether or not exercisable, shall cease to represent a right to
acquire shares of Company Common Stock and shall be converted automatically
into an option to purchase shares of PHFG Common Stock, and PHFG shall assume
each Company Option, in accordance with the terms of the applicable Company
Stock Option Plan and stock option agreement by which it is evidenced, except
that from and after the Effective Time, (i) PHFG and the Human Resources
Committee of its Board of Directors shall be substituted for the Company and
the committee of the Company's Board of Directors (including, if applicable,
the entire Board of Directors of the Company) administering such Company Stock
Option Plan, (ii) each Company Option assumed by PHFG may be exercised solely
for shares of PHFG Common Stock, (iii) the number of shares of PHFG Common
Stock subject to such Company Option shall be equal to the number of shares of
Company Common Stock subject to such Company Option immediately prior to the
Effective Time multiplied by the Exchange Ratio, provided that any fractional
shares of PHFG Common Stock resulting from such multiplication shall be rounded
down to the nearest share, and (iv) the per share exercise price under each
such Company Option shall be adjusted by dividing the per share exercise price
under each such Company Option by the Exchange Ratio, provided that such
exercise price shall be rounded up to the nearest cent. Notwithstanding
clauses (iii) and (iv) of the preceding sentence, each Company Option which is
an "incentive stock option" shall be adjusted as required by Section 424 of the
Code, and the regulations promulgated thereunder, so as not to constitute a
modification, extension or renewal of the option within the meaning of Section
424(h) of the Code. PHFG and the Company agree to take all necessary steps to
effect the foregoing provisions of this Section 2.9(a).
(b) Within 30 days after the Effective Time, PHFG shall file a
registration statement on Form S-3 or Form S-8, as the case may be (or any
successor or other appropriate forms), with respect to the shares of PHFG
Common Stock subject to the options referred to in paragraph (a) of this
Section 2.9 and shall use its reasonable efforts to maintain the current status
of the prospectus or prospectuses contained therein for so long as such options
remain outstanding in the case of a Form S-8 or, in the case of a Form S-3,
until the shares subject to such options may be sold without a further holding
period under Rule 144 under the Securities Act.
12
<PAGE> 17
2.10 Additional Actions
If, at any time after the Effective Time, the Surviving Corporation
shall consider that any further assignments or assurances in law or any other
acts are necessary or desirable to (i) vest, perfect or confirm, of record or
otherwise, in the Surviving Corporation its right, title or interest in, to or
under any of the rights, properties or assets of the Company acquired or to be
acquired by the Surviving Corporation as a result of, or in connection with,
the Merger, or (ii) otherwise carry out the purposes of this Agreement, the
Company, and its proper officers and directors, shall be deemed to have granted
to the Surviving Corporation an irrevocable power of attorney to execute and
deliver all such proper deeds, assignments and assurances in law and to do all
acts necessary or proper to vest, perfect or confirm title to and possession of
such rights, properties or assets in the Surviving Corporation and otherwise to
carry out the purposes of this Agreement, and the proper officers and directors
of the Surviving Corporation are fully authorized in the name of the Surviving
Corporation or otherwise to take any and all such action.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to PHFG that, except as Previously
Disclosed:
3.1 Capital Structure
The authorized capital stock of the Company consists of 50,000,000
shares of Company Common Stock and 3,000,000 shares of Company Preferred Stock.
As of the date hereof, there are 24,002,744 shares of Company Common Stock
issued and outstanding, 37,877 shares of Company Common Stock are directly or
indirectly held by the Company as treasury stock and there are no shares of
Company Preferred Stock outstanding. All outstanding shares of Company Common
Stock have been duly authorized and validly issued and are fully paid and
nonassessable, and none of the outstanding shares of Company Common Stock has
been issued in violation of the preemptive rights of any person, firm or
entity. Except by virtue of (i) the Company Stock Option Agreement, (ii)
outstanding Rights as of the date hereof to purchase an aggregate of 1,178,453
shares of Company Common Stock pursuant to the Company Stock Option Plans, as
Previously Disclosed, and (iii) Rights granted in the ordinary course of
business pursuant to the Company Stock Purchase Plan for any offering period
pursuant thereto ended on or before December 31, 1997, there are no Rights
authorized, issued or outstanding with respect to the capital stock of the
Company.
3.2 Organization, Standing and Authority of the Company
The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of New Hampshire with full corporate
power and authority to
13
<PAGE> 18
own or lease all of its properties and assets and to carry on its business as
now conducted and is duly licensed or qualified to do business and is in good
standing in each jurisdiction in which its ownership or leasing of property or
the conduct of its business requires such licensing or qualification, except
where the failure to be so licensed, qualified or in good standing would not
have a Material Adverse Effect on the Company. The Company is duly registered
as a bank holding company under the BHCA and the regulations of the FRB
thereunder. The Company has heretofore delivered to PHFG true and complete
copies of the Certificate of Incorporation and Bylaws of the Company as in
effect as of the date hereof.
3.3 Ownership of the Company Subsidiaries
The Company has Previously Disclosed the name, jurisdiction of
incorporation and percentage ownership of each direct or indirect Company
Subsidiary and identified its Significant Subsidiaries. Except for (i) capital
stock or other ownership interests in the Company Subsidiaries, (ii) stock in
the FHLB of Boston and the Federal Reserve Bank of Boston, (iii) securities and
other interests held in a fiduciary capacity and beneficially owned by third
parties or taken in consideration of debts previously contracted and (iv) the
PHFG Stock Option Agreement, the Company does not own or have the right to
acquire, directly or indirectly, any outstanding capital stock or other voting
securities or ownership interests of any corporation, bank, savings
association, partnership, joint venture or other organization. The outstanding
shares of capital stock or other ownership interests of each Company Subsidiary
have been duly authorized and validly issued, are fully paid and (except as
provided by applicable law) nonassessable, and are directly or indirectly owned
by the Company free and clear of all liens, claims, encumbrances, charges,
pledges, restrictions or rights of third parties of any kind whatsoever. No
Rights are authorized, issued or outstanding with respect to the capital stock
or other ownership interests of the Company Subsidiaries and there are no
agreements, understandings or commitments relating to the right of the Company
to vote or to dispose of such capital stock or other ownership interests.
3.4 Organization, Standing and Authority of the Company Subsidiaries
Each of the Company Subsidiaries is a corporation or partnership duly
organized, validly existing and in good standing under the laws of the
jurisdiction in which it is organized. Each of the Company Subsidiaries (i)
has full power and authority to own or lease all of its properties and assets
and to carry on its business as now conducted and (ii) is duly licensed or
qualified to do business and is in good standing in each jurisdiction in which
its ownership or leasing of property or the conduct of its business requires
such qualification, except where the failure to be so licensed, qualified or in
good standing would not have a Material Adverse Effect on the Company. The
deposit accounts of each Company Bank are insured by the BIF, or in the case of
certain deposits of each such institution, the SAIF, to the maximum extent
permitted by the FDIA, and each Company Bank has paid all deposit insurance
premiums and assessments required by the FDIA and the regulations thereunder.
The deposit accounts of the Massachusetts-chartered Company
14
<PAGE> 19
Massachusetts Bank are insured by the Depositors Insurance Fund for amounts in
excess of FDIC limits pursuant to Massachusetts law, and the Company
Massachusetts Bank has paid all deposit insurance premiums and assessments
required under applicable Massachusetts laws and regulations. The Company has
heretofore delivered or made available to PHFG true and complete copies of the
Charter or equivalent documents and Bylaws of each Company Subsidiary as in
effect as of the date hereof.
3.5 Authorized and Effective Agreement
(a) The Company has all requisite corporate power and authority to
enter into this Agreement and (subject to receipt of all necessary governmental
approvals and the approval of the Company's shareholders of this Agreement) to
perform all of its obligations under this Agreement. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action in respect thereof on the part of the Company, except for the
approval of this Agreement by the Company's shareholders. This Agreement has
been duly and validly executed and delivered by the Company and, assuming due
authorization, execution and delivery by PHFG, constitutes a legal, valid and
binding obligation of the Company which is enforceable against the Company in
accordance with its terms, subject, as to enforceability, to bankruptcy,
insolvency and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(b) Neither the execution and delivery of this Agreement, nor
consummation of the transactions contemplated hereby (including the Merger and
the Bank Mergers), nor compliance by the Company with any of the provisions
hereof (i) does or will conflict with or result in a breach of any provisions
of the Certificate of Incorporation or Bylaws of the Company or the equivalent
documents of any Company Subsidiary, (ii) violate, conflict with or result in a
breach of any term, condition or provision of, or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a default)
under, or give rise to any right of termination, cancellation or acceleration
with respect to, or result in the creation of any lien, charge or encumbrance
upon any property or asset of the Company or a Company Subsidiary pursuant to,
any material note, bond, mortgage, indenture, deed of trust, license, lease,
agreement or other instrument or obligation to which the Company or a Company
Subsidiary is a party, or by which any of their respective properties or assets
may be bound or affected, or (iii) subject to receipt of all required
governmental and shareholder approvals, violate any order, writ, injunction,
decree, statute, rule or regulation applicable to the Company or a Company
Subsidiary.
(c) Except for (i) the filing of applications or notices with, and
the consents, approvals or waivers of, as applicable, the FRB, the DOJ, the
Superintendent, the New Hampshire Bank Commissioner, the Massachusetts Board
and the MHPF in connection with the Merger, (ii) the filing and effectiveness
of the Form S-4 with the Commission, (iii) the approval of this Agreement by
the requisite vote of the shareholders of the Company, (iv) the filing of
Articles of Merger with the Secretary of State of the State of Maine pursuant
15
<PAGE> 20
to the MBCA and the Secretary of State of the State of New Hampshire pursuant
to the NHBCA, in each case in connection with the Merger, and (v) such
corporate approvals and such applications or notices with, and consents,
approvals or waivers of, the OCC, the OTS, the FDIC, the New Hampshire Bank
Commissioner, the Massachusetts Bank Commissioner and the Central Fund as may
be applicable in connection with a Bank Merger, and except as Previously
Disclosed, no consents, approvals or waivers of or filings or registrations
with any Governmental Entity or with any third party are necessary on the part
of the Company or a Company Bank in connection with (i) the execution and
delivery by the Company of this Agreement and the consummation by the Company
of the transactions contemplated hereby and (ii) the execution and delivery by
a Company Bank of a Bank Merger Agreement and the consummation by a Company
Bank of the transactions contemplated thereby.
(d) As of the date hereof, the Company is not aware of any reason
relating to the Company or a Company Subsidiary (including without limitation
Community Reinvestment Act compliance) why all consents and approvals shall not
be procured from all Governmental Entities having jurisdiction over the
transactions contemplated by this Agreement as shall be necessary for (i)
consummation of the transactions contemplated by this Agreement and the Bank
Merger Agreements and (ii) the continuation by PHFG after the Effective Time of
the business of each of PHFG, the Company and the Company Subsidiaries as such
business is carried on immediately prior to the Effective Time, free of any
conditions or requirements which, in the reasonable opinion of the Company,
could reasonably be expected to have a Material Adverse Effect on PHFG or the
Company or materially impair the value of the Company and the Company
Subsidiaries to PHFG.
3.6 Securities Documents and Regulatory Reports
(a) Since January 1, 1994, the Company has timely filed with the
Commission all Securities Documents required by the Securities Laws and such
Securities Documents complied in all material respects with the Securities Laws
and did not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
(b) Since January 1, 1994, the Company and each Company Bank have
duly filed with the FRB, the OCC, the FDIC, the New Hampshire Bank
Commissioner, the Massachusetts Bank Commissioner and any other applicable
Governmental Entity, as the case may be, in correct form the reports required
to be filed under applicable laws and regulations and such reports were in all
material respects complete and accurate and in compliance with the requirements
of applicable laws and regulations. In connection with the most recent
examinations of the Company or a Company Subsidiary by the FRB, the OCC, the
FDIC, the New Hampshire Bank Commissioner, the Massachusetts Bank Commissioner
or any other applicable Governmental Entity, neither the Company nor any
Company Subsidiary was required to correct or change any action, procedure or
proceeding
16
<PAGE> 21
which the Company believes has not been corrected or changed as required in all
material respects.
3.7 Financial Statements
(a) The Company has previously delivered or made available to PHFG
accurate and complete copies of the Company Financial Statements for all
periods prior to the date hereof, which, in the case of the consolidated
statements of financial condition of the Company as of December 31, 1996, 1995
and 1994 and the consolidated statements of operations, shareholders' equity
and cash flows for each of the three years ended December 31, 1996, 1995 and
1994, are accompanied by the audit reports of Wolf & Company, P.C., independent
public accountants with respect to the Company. The Company Financial
Statements referred to herein, as well as the Company Financial Statements to
be delivered pursuant to Section 5.7 hereof, fairly present or will fairly
present, as the case may be, the consolidated financial condition of the
Company as of the respective dates set forth therein, and the consolidated
results of operations, shareholders' equity and cash flows of the Company for
the respective periods or as of the respective dates set forth therein.
(b) Each of the Company Financial Statements has been or will be,
as the case may be, prepared in accordance with generally accepted accounting
principles consistently applied during the periods involved, except as stated
therein. The books and records of the Company and the Company Subsidiaries are
being maintained in material compliance with applicable legal and accounting
requirements, and such books and records accurately reflect in all material
respects all dealings and transactions in respect of the business, assets,
liabilities and affairs of the Company and the Company Subsidiaries.
(c) Except and to the extent (i) reflected, disclosed or provided
for in the Securities Documents filed by the Company prior to the date hereof
and (ii) of liabilities incurred since June 30, 1997 in the ordinary course of
business, neither the Company nor any Company Subsidiary has any liabilities,
whether absolute, accrued, contingent or otherwise, material to the financial
condition, results of operations or business of the Company on a consolidated
basis.
3.8 Material Adverse Change
Since June 30, 1997, (i) the Company and the Company Subsidiaries have
conducted their respective businesses in the ordinary and usual course
(excluding the incurrence of expenses in connection with this Agreement and the
transactions contemplated hereby) and (ii) no event has occurred or
circumstance arisen that, individually or in the aggregate, has had or could
reasonably be expected to have a Material Adverse Effect on the Company.
17
<PAGE> 22
3.9 Environmental Matters
(a) To the best of the Company's knowledge, the Company and the
Company Subsidiaries are in compliance with all Environmental Laws, except for
any violations of any Environmental Law which would not, singly or in the
aggregate, have a Material Adverse Effect on the Company. Neither the Company
nor a Company Subsidiary has received any communication alleging that the
Company or a Company Subsidiary is not in such compliance and, to the best
knowledge of the Company, there are no present circumstances that would prevent
or interfere with the continuation of such compliance.
(b) To the best of the Company's knowledge, none of the properties
owned, leased or operated by the Company or a Company Subsidiary has been or is
in violation of or liable under any Environmental Law, except any such
violations or liabilities which would not singly or in the aggregate have a
Material Adverse Effect on the Company.
(c) To the best of the Company's knowledge, there are no past or
present actions, activities, circumstances, conditions, events or incidents
that could reasonably form the basis of any Environmental Claim or other claim
or action or governmental investigation that could result in the imposition of
any liability arising under any Environmental Law against the Company or a
Company Subsidiary or against any person or entity whose liability for any
Environmental Claim the Company or a Company Subsidiary has or may have
retained or assumed either contractually or by operation of law, except such
which would not have a Material Adverse Effect on the Company.
(d) Except as Previously Disclosed, the Company has not conducted
any environmental studies during the past five years with respect to any
properties owned by it or a Company Subsidiary as of the date hereof or which
secure loans of a Company Subsidiary as of the date hereof.
3.10 Tax Matters
(a) The Company and the Company Subsidiaries have timely filed all
federal, state and local (and, if applicable, foreign) income, franchise, bank,
excise, real property, personal property and other tax returns required by
applicable law to be filed by them (including, without limitation, estimated
tax returns, income tax returns, information returns and withholding and
employment tax returns) and have paid, or where payment is not required to have
been made, have set up an adequate reserve or accrual for the payment of, all
taxes required to be paid in respect of the periods covered by such returns
and, as of the Effective Time, will have paid, or where payment is not required
to have been made, will have set up an adequate reserve or accrual for the
payment of, all taxes for any subsequent periods ending on or prior to the
Effective Time. Neither the Company nor any Company Subsidiary will have any
material liability for any such taxes in excess of the amounts so paid or
reserves or accruals so established.
18
<PAGE> 23
(b) All federal, state and local (and, if applicable, foreign)
income, franchise, bank, excise, real property, personal property and other tax
returns filed by the Company and the Company Subsidiaries are complete and
accurate in all material respects. Neither the Company nor any Company
Subsidiary is delinquent in the payment of any tax, assessment or governmental
charge, and none of them has requested any extension of time within which to
file any tax returns in respect of any fiscal year or portion thereof which
have not since been filed. The federal, state and local income tax returns of
the Company and the Company Subsidiaries have been examined by the applicable
tax authorities (or are closed to examination due to the expiration of the
applicable statute of limitations) and no deficiencies for any tax, assessment
or governmental charge have been proposed, asserted or assessed (tentatively or
otherwise) against the Company or any Company Subsidiary as a result of such
examinations or otherwise which have not been settled and paid. There are
currently no agreements in effect with respect to the Company or a Company
Subsidiary to extend the period of limitations for the assessment or collection
of any tax. As of the date hereof, no audit, examination or deficiency or
refund litigation with respect to such return is pending or, to the best of the
Company's knowledge, threatened.
(c) Except as Previously Disclosed, neither the Company nor any
Company Subsidiary (i) is a party to any agreement providing for the allocation
or sharing of taxes, (ii) is required to include in income any adjustment
pursuant to Section 481(a) of the Code by reason of a voluntary change in
accounting method initiated by the Company or a Company Subsidiary (nor does
the Company have any knowledge that the Internal Revenue Service has proposed
any such adjustment or change of accounting method) or (iii) has filed a
consent pursuant to Section 341(f) of the Code or agreed to have Section
341(f)(2) of the Code apply.
3.11 Legal Proceedings
There are no actions, suits, claims, governmental investigations or
proceedings instituted, pending or, to the best knowledge of the Company,
threatened against the Company or any Company Subsidiary or against any asset,
interest or right of the Company or any Company Subsidiary, or against any
officer, director or employee of any of them that in any such case, if decided
adversely, would, individually or in the aggregate, have a Material Adverse
Effect on the Company. Neither the Company nor any Company Subsidiary is a
party to any order, judgment or decree which has or could reasonably be
expected to have a Material Adverse Effect on the Company.
3.12 Compliance with Laws
(a) The Company and each Company Subsidiary has all permits,
licenses, certificates of authority, orders and approvals of, and has made all
filings, applications and registrations with, federal, state, local and foreign
governmental or regulatory bodies that are required in order to permit it to
carry on its business as it is presently being conducted and the absence of
which could reasonably be expected to have a Material Adverse Effect
19
<PAGE> 24
on the Company; all such permits, licenses, certificates of authority, orders
and approvals are in full force and effect; and to the best knowledge of the
Company, no suspension or cancellation of any of the same is threatened.
(b) Neither the Company nor any Company Subsidiary is in violation
of its respective Certificate of Incorporation or equivalent document or
Bylaws, or of any applicable federal, state or local law or ordinance or any
order, rule or regulation of any federal, state, local or other governmental
agency or body (including, without limitation, all banking (including without
limitation all regulatory capital requirements), securities, municipal
securities, safety, health, environmental, zoning, anti-discrimination,
antitrust, and wage and hour laws, ordinances, orders, rules and regulations),
or in default with respect to any order, writ, injunction or decree of any
court, or in default under any order, license, regulation or demand of any
governmental agency, any of which violations or defaults could reasonably be
expected to have a Material Adverse Effect on the Company; and neither the
Company nor any Company Subsidiary has received any notice or communication
from any federal, state or local governmental authority asserting that the
Company or a Company Subsidiary is in violation of any of the foregoing which
could reasonably be expected to have a Material Adverse Effect on the Company.
Neither the Company nor any Company Subsidiary is subject to any regulatory or
supervisory cease and desist order, agreement, written directive, memorandum of
understanding or written commitment (other than those of general applicability
to all banks or bank holding companies issued by governmental authorities), and
none of them has received any written communication requesting that it enter
into any of the foregoing.
3.13 Certain Information
None of the information relating to the Company and the Company
Subsidiaries supplied or to be supplied for inclusion or incorporation by
reference in (i) the Form S-4 will, at the time the Form S-4 and any amendment
thereto becomes effective under the Securities Act, contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, and (ii) the Proxy Statement, as of the date(s) such
Proxy Statement is mailed to shareholders of the Company and PHFG and up to and
including the date(s) of the meetings of shareholders to which such Proxy
Statement relates, will contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, provided that
information as of a later date shall be deemed to modify information as of an
earlier date. The Proxy Statement mailed by the Company to its shareholders in
connection with the meeting of shareholders at which this Agreement will be
considered by such shareholders will comply as to form in all material respects
with the Exchange Act and the rules and regulations promulgated thereunder.
20
<PAGE> 25
3.14 Employee Benefit Plans
(a) The Company has Previously Disclosed all stock option,
employee stock purchase and stock bonus plans, qualified pension or
profit-sharing plans, any deferred compensation, consultant, bonus or group
insurance contract or any other incentive, welfare or employee benefit plan or
agreement maintained or contributed to by the Company or any Company Subsidiary
for the benefit of employees or former employees of the Company or any Company
Subsidiary (the "Company Employee Plans"), and the Company has previously
furnished or made available to PHFG accurate and complete copies of the same
together with (i) the most recent actuarial and financial reports prepared with
respect to any qualified plans, (ii) the most recent annual reports filed with
any governmental agency with respect to each Company Employee Plan, and (iii)
all rulings and determination letters and any open requests for rulings or
letters that pertain to any qualified plan.
(b) None of the Company, any Company Subsidiary, any pension plan
maintained by any of them and qualified under Section 401 of the Code or, to
the best of the Company's knowledge, any fiduciary of such plan has incurred
any material liability to the PBGC or the Internal Revenue Service with respect
to any employees of the Company or any Company Subsidiary. To the best of the
Company's knowledge, no reportable event under Section 4043(b) of ERISA has
occurred with respect to any such pension plan, other than any reportable event
for which notice to the PBGC is not required.
(c) Except as Previously Disclosed, neither the Company nor any
Company Subsidiary participates in or has incurred any liability under Section
4201 of ERISA for a complete or partial withdrawal from a multi-employer plan
(as such term is defined in ERISA), and neither the Company nor any Company
Subsidiary (or their respective successors) will incur any liability in the
event of a complete withdrawal from the multi-employer plan of which the
Company and certain of its Subsidiaries is a participant as of the date hereof
in connection with the transactions contemplated hereby.
(d) A favorable determination letter has been issued by the
Internal Revenue Service with respect to each Company Employee Plan which is an
"employee pension benefit plan" (as defined in Section 3(2) of ERISA) (a
"Company Pension Plan") which is intended to qualify under Section 401 of the
Code to the effect that such plan is qualified under Section 401 of the Code
and the trust associated with such employee pension plan is tax exempt under
Section 501 of the Code. No such letter has been revoked or, to the best of
the Company's knowledge, is threatened to be revoked and the Company does not
know of any ground on which such revocation may be based. Neither the Company
nor any Company Subsidiary has any liability under any such plan that is not
reflected on the consolidated statement of financial condition of the Company
at June 30, 1997 included in the Company Financial Statements, other than
liabilities incurred in the ordinary course of business in connection therewith
subsequent to the date thereof.
21
<PAGE> 26
(e) To the best of the Company's knowledge, no prohibited
transaction (which shall mean any transaction prohibited by Section 406 of
ERISA and not exempt under Section 408 of ERISA or Section 4975 of the Code)
has occurred with respect to any Company Employee Plan which would result in
the imposition, directly or indirectly, of a material excise tax under Section
4975 of the Code or otherwise have a Material Adverse Effect on the Company.
(f) Full payment has been made (or proper accruals have been
established) of all contributions which are required for periods prior to the
date hereof, and full payment will be so made (or proper accruals will be so
established) of all contributions which are required for periods after the date
hereof and prior to the Effective Time, under the terms of each Company
Employee Plan or ERISA; no accumulated funding deficiency (as defined in
Section 302 of ERISA or Section 412 of the Code), whether or not waived, exists
with respect to any Company Pension Plan, and there is no "unfunded current
liability" (as defined in Section 412 of the Code) with respect to any Company
Pension Plan.
(g) To the best of the Company's knowledge, the Company Employee
Plans have been operated in compliance in all material respects with the
applicable provisions of ERISA, the Code, all regulations, rulings and
announcements promulgated or issued thereunder and all other applicable
governmental laws and regulations.
(h) There are no pending or, to the best knowledge of the Company,
threatened claims (other than routine claims for benefits) by, on behalf of or
against any of the Company Employee Plans or any trust related thereto or any
fiduciary thereof relating to a Company Employee Plan.
3.15 Certain Contracts
(a) Except as Previously Disclosed, neither the Company nor any
Company Subsidiary is a party to, is bound or affected by, receives, or is
obligated to pay, benefits under (i) any agreement, arrangement or commitment,
including without limitation any agreement, indenture or other instrument,
relating to the borrowing of money by the Company or a Company Subsidiary
(other than deposits, federal funds purchased, FHLB advances and securities
sold under agreements to repurchase) or the guarantee by the Company or a
Company Subsidiary of any obligation, (ii) any agreement, arrangement or
commitment relating to the employment of a consultant or the employment,
election or retention in office of any present or former director, officer or
employee of the Company or a Company Subsidiary, (iii) any agreement,
arrangement or understanding pursuant to which any payment (whether of
severance pay or otherwise) became or may become due to any director, officer
or employee of the Company or a Company Subsidiary upon execution of this
Agreement or upon or following consummation of the transactions contemplated by
this Agreement (either alone or in connection with the occurrence of any
additional acts or events), (iv) any agreement, arrangement or understanding
pursuant to which the Company or a Company Subsidiary is obligated to indemnify
any existing or
22
<PAGE> 27
former director, officer, employee or agent of the Company or a Company
Subsidiary, (v) any agreement, arrangement or understanding to which the
Company or a Company Subsidiary is a party or by which any of the same is bound
which limits the freedom of the Company or a Company Subsidiary to compete in
any line of business or with any person or (vi) any other agreement,
arrangement or understanding which would be required to be filed as an exhibit
to the Company's Annual Report on Form 10-K under the Exchange Act and which
has not been so filed.
(b) Neither the Company nor any Company Subsidiary is in default
or in non-compliance, which default or non-compliance could reasonably be
expected to have a Material Adverse Effect on the Company, under any contract,
agreement, commitment, arrangement, lease, insurance policy or other instrument
to which it is a party or by which its assets, business or operations may be
bound or affected, whether entered into in the ordinary course of business or
otherwise and whether written or oral, and there has not occurred any event
that with the lapse of time or the giving of notice, or both, would constitute
such a default or non-compliance.
3.16 Brokers and Finders
Except for an agreement with Keefe, Bruyette & Woods, Inc., as
Previously Disclosed, neither the Company nor any Company Subsidiary, nor any
of their respective directors, officers or employees, has employed any broker
or finder or incurred any liability for any broker or finder fees or
commissions in connection with the transactions contemplated hereby.
3.17 Insurance
The Company believes that it and each Company Subsidiary is insured,
and during each of the past three calendar years has been insured, for
reasonable amounts with financially sound and reputable insurance companies
against such risks as companies engaged in a similar business would, in
accordance with good business practice, customarily be insured and has
maintained all insurance required by applicable laws and regulations. The
Company has Previously Disclosed to PHFG a list identifying all insurance
policies maintained by it or a Company Subsidiary as of the date hereof. All
of the policies and bonds maintained by the Company and its Subsidiaries are in
full force and effect and all claims thereunder have been filed in a due and
timely manner and, to the Company's knowledge, no such claim has been denied.
3.18 Properties
All real and personal property owned by the Company or a Company
Subsidiary or presently used by any of them in its respective business is in an
adequate condition (ordinary wear and tear excepted) and is sufficient to carry
on its business in the ordinary course of business consistent with its past
practices. The Company has good and marketable title free
23
<PAGE> 28
and clear of all liens, encumbrances, charges, defaults or equities (other than
equities of redemption under applicable foreclosure laws) to all of the
material properties and assets, real and personal, reflected on the
consolidated statement of financial condition of the Company as of June 30,
1997 included in the Company Financial Statements or acquired after such date,
other than properties sold by the Company in the ordinary course of business,
except (i) liens for current taxes not yet due or payable, (ii) pledges to
secure deposits and other liens incurred in the ordinary course of its banking
business, (iii) such imperfections of title, easements and encumbrances, if
any, as are not material in character, amount or extent and (iv) as reflected
on the consolidated statement of financial condition of the Company as of June
30, 1997 included in the Company Financial Statements. All real and personal
property which is material to the Company's business on a consolidated basis
and leased or licensed by the Company or a Company Subsidiary is held pursuant
to leases or licenses which are valid and enforceable in accordance with their
respective terms and such leases will not terminate or lapse prior to the
Effective Time.
3.19 Labor
No work stoppage involving the Company or a Company Subsidiary is
pending or, to the best knowledge of the Company, threatened. Neither the
Company nor any Company Subsidiary is involved in, or threatened with or
affected by, any labor dispute, arbitration, lawsuit or administrative
proceeding involving the employees of the Company or a Company Subsidiary which
reasonably could be expected to have a Material Adverse Effect on the Company.
Employees of the Company and any Company Subsidiary are not represented by any
labor union nor are any collective bargaining agreements otherwise in effect
with respect to such employees, and to the best of the Company's knowledge,
there have been no efforts to unionize or organize any employees of the Company
or a Company Subsidiary during the past five years.
3.20 Loans; Nonperforming and Classified Assets
(a) Each loan agreement, note or borrowing arrangement, including
without limitation portions of outstanding lines of credit and loan commitments
(collectively, "Loans"), on the books and records of the Company and its
Subsidiaries, was made and has been serviced in all material respects in
accordance with customary lending standards in the ordinary course of business,
is evidenced in all material respects by appropriate and sufficient
documentation and, to the best knowledge of the Company, constitutes the legal,
valid and binding obligation of the obligor named therein, subject to
bankruptcy, insolvency, fraudulent conveyance and other laws of general
applicability relating to or affecting creditor's rights and to general equity
principles.
(b) The Company has Previously Disclosed as to the Company and
each Company Subsidiary as of September 30, 1997: (i) any written or, to the
Company's knowledge, oral Loan under the terms of which the obligor is 60 or
more days delinquent in payment of principal or interest, or to the best of the
Company's knowledge, in default of any other
24
<PAGE> 29
provision thereof; (ii) each Loan which has been classified as "substandard,"
"doubtful," "loss" or "special mention" (or words of similar import) by the
Company, a Company Subsidiary or an applicable regulatory authority; (iii) a
listing of the real estate owned acquired by foreclosure or by deed-in-lieu
thereof, including the book value thereof; and (iv) each Loan with any
director, executive officer or five percent or greater stockholder of the
Company or a Company Bank, or to the best knowledge of the Company, any
person, corporation or enterprise controlling, controlled by or under common
control with any of the foregoing.
3.21 Administration of Fiduciary Accounts
The Company and each of its Subsidiaries has properly administered all
accounts for which it acts as a fiduciary, including but not limited to
accounts for which it serves as a trustee, agent, custodian, personal
representative, guardian, conservator or investment advisor, in accordance with
the terms of the governing documents and applicable laws and regulations,
except for failures to so administer which would not have a Material Adverse
Effect on the Company. Neither the Company nor any of its Subsidiaries, nor
any of their respective directors, officers or employees, has committed any
breach of trust with respect to any such fiduciary account and the records for
each such fiduciary account are true and correct and accurately reflect the
assets of such fiduciary account, except for breaches of trust and failures to
maintain records which would not, individually or in the aggregate, have a
Material Adverse Effect on the Company.
3.22 Derivative Transactions
Except as Previously Disclosed, as of the date hereof neither the
Company nor any of its Subsidiaries has engaged in transactions in or involving
forwards, futures, options on futures, swaps or other derivative instruments
since December 31, 1996.
3.23 Required Vote; Antitakeover Provisions
(a) The affirmative vote of the holders of a majority of the
issued and outstanding shares of Company Common Stock is the requisite vote to
approve this Agreement and the transactions contemplated hereby on behalf of
the Company.
(b) No "control share acquisition, "business combination
moratorium," "fair price" or other form of antitakeover statute or regulation is
applicable to this Agreement and the transactions contemplated hereby. The
Board of Directors of the Company has taken all necessary action so that the
provisions of Article Seven, Section 2(c) of the Company's Articles of
Incorporation do not and will not apply to this Agreement and the transactions
contemplated hereby and, assuming the accuracy of the representation and
warranty of PHFG contained in Section 4.22(b) hereof, the provisions of Article
Seven, Section 2(b) of the Company's Articles of Incorporation do not and will
not apply to this Agreement and the transactions contemplated hereby.
25
<PAGE> 30
3.24 Fairness Opinion
The Company has received a written opinion of Keefe, Bruyette & Woods,
Inc. to the effect that, as of the date hereof, the consideration to be
received by the stockholders of the Company pursuant to this Agreement is fair
from a financial point of view to the holders of the Company Common Stock.
3.25 Accounting for the Merger; Reorganization
As of the date hereof, the Company does not have any reason to believe
that the Merger will fail to qualify (i) for pooling-of-interests accounting
treatment under generally accepted accounting principles or (ii) as a
reorganization under Section 368(a) of the Code.
3.26 Disclosures
None of the representations and warranties of the Company or any of
the written information or documents furnished or to be furnished by the
Company to PHFG in connection with or pursuant to this Agreement or the
consummation of the transactions contemplated hereby, when considered as a
whole, contains or will contain any untrue statement of a material fact, or
omits or will omit to state any material fact required to be stated or
necessary to make any such information or document, in light of the
circumstances, not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PHFG
PHFG represents and warrants to the Company that, except as Previously
Disclosed:
4.1 Capital Structure
The authorized capital stock of PHFG consists of 100,000,000 shares of
PHFG Common Stock and 5,000,000 shares of PHFG Preferred Stock. As of
September 30, 1997, there were 27,474,529 shares of PHFG Common Stock issued
and outstanding, 1,102,356 shares of PHFG Common Stock were held as treasury
stock and not outstanding and there were no shares of PHFG Preferred Stock
issued and outstanding. All outstanding shares of PHFG Common Stock have been
duly authorized and validly issued and are fully paid and nonassessable, and
none of the outstanding shares of PHFG Common Stock has been issued in
violation of the preemptive rights of any person, firm or entity. As of the
date hereof, there are no Rights authorized, issued or outstanding with respect
to the capital stock of PHFG, except for (i) shares of PHFG Common Stock
issuable pursuant to PHFG Employee Stock Benefit Plans, now or hereafter, (ii)
shares of PHFG Common Stock issuable pursuant to the PHFG Rights Agreement and
(iii) by virtue of this Agreement and the PHFG Stock Option Agreement.
26
<PAGE> 31
4.2 Organization, Standing and Authority of PHFG
PHFG is a corporation duly organized, validly existing and in good
standing under the laws of the State of Maine with full corporate power and
authority to own or lease all of its properties and assets and to carry on its
business as now conducted and is duly licensed or qualified to do business and
is in good standing in each jurisdiction in which its ownership or leasing of
property or the conduct of its business requires such licensing or
qualification, except where the failure to be so licensed, qualified or in good
standing would not have a Material Adverse Effect on PHFG. PHFG is duly
registered as a bank holding company under the BHCA and the regulations of the
FRB thereunder. PHFG has heretofore delivered to the Company true and complete
copies of the Articles of Incorporation and Bylaws of PHFG as in effect as of
the date hereof.
4.3 Ownership of the PHFG Subsidiaries
PHFG has Previously Disclosed the name, jurisdiction of incorporation
and percentage ownership of each direct or indirect PHFG Subsidiary and
identified its Significant Subsidiaries as of the date hereof. Except for (i)
capital stock or other ownership interests in the PHFG Subsidiaries, (ii) stock
in the FHLB of Boston, (iii) securities and other interests held in a fiduciary
capacity and beneficially owned by third parties or taken in consideration of
debts previously contracted, (iv) rights to acquire PHFG Capital Securities
pursuant to agreements entered into in connection with their issuance and (v)
this Agreement and the Company Stock Option Agreement, as of the date hereof
PHFG does not own or have the right to acquire, directly or indirectly, any
outstanding capital stock or other voting securities or ownership interests of
any corporation, bank, savings association, partnership, joint venture or other
organization. The outstanding shares of capital stock of each PHFG Subsidiary
which is a Significant Subsidiary have been duly authorized and validly issued,
are fully paid and nonassessable and, except in the case of the PHFG Capital
Securities, are directly or indirectly owned by PHFG free and clear of all
liens, claims, encumbrances, charges, pledges, restrictions or rights of third
parties of any kind whatsoever. No Rights are authorized, issued or
outstanding with respect to the capital stock or other ownership interests of
any PHFG Subsidiary which is a Significant Subsidiary and, except for
agreements entered into in connection with the issuance of the PHFG Capital
Securities, there are no agreements, understandings or commitments relating to
the right of PHFG to vote or to dispose of such capital stock or other
ownership interests.
4.4 Organization, Standing and Authority of the PHFG Subsidiaries
Each PHFG Subsidiary which is a Significant Subsidiary is a
corporation duly organized, validly existing and in good standing under the
laws of the United States or the laws of the jurisdiction in which it is
organized, as applicable. Each of the PHFG Subsidiaries which is a Significant
Subsidiary (i) has full power and authority to own or lease all of its
properties and assets and to carry on its business as now conducted, and (ii)
is duly licensed or qualified to do business and is in good standing in each
jurisdiction in which its
27
<PAGE> 32
ownership or leasing of property or the conduct of its business requires such
qualification and where the failure to be so licensed, qualified or in good
standing would have a Material Adverse Effect on PHFG. The deposit accounts of
each PHFG Bank are insured by either the BIF or, in the case of certain
deposits of each such institution, the SAIF to the maximum extent permitted by
the FDIA, and each PHFG Bank has paid all premiums and assessments required by
the FDIA and the regulations thereunder.
4.5 Authorized and Effective Agreement
(a) PHFG has all requisite corporate power and authority to enter
into this Agreement and (subject to receipt of all necessary governmental
approvals and the approval of PHFG's shareholders of this Agreement) to perform
all of its obligations under this Agreement. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby
have been duly and validly authorized by all necessary corporate action in
respect thereof on the part of PHFG, except for the approval of this Agreement
by PHFG's shareholders. This Agreement has been duly and validly executed and
delivered by PHFG and, assuming due authorization, execution and delivery by
the Company, constitutes a legal, valid and binding obligation of PHFG which is
enforceable against PHFG in accordance with its terms, subject, as to
enforceability, to bankruptcy, insolvency and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.
(b) Neither the execution and delivery of this Agreement, nor
consummation of the transactions contemplated hereby (including the Merger and
the Bank Mergers), nor compliance by PHFG with any of the provisions hereof (i)
does or will conflict with or result in a breach of any provisions of the
Articles of Incorporation or Bylaws of PHFG or any PHFG Subsidiary, (ii)
violate, conflict with or result in a breach of any term, condition or
provision of, or constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or give rise to any right
of termination, cancellation or acceleration with respect to, or result in the
creation of any lien, charge or encumbrance upon any property or asset of PHFG
or a PHFG Subsidiary pursuant to, any material note, bond, mortgage, indenture,
deed of trust, license, lease, agreement or other instrument or obligation to
which PHFG or a PHFG Subsidiary is a party, or by which any of their respective
properties or assets may be bound or affected, or (iii) subject to receipt of
all required governmental and shareholder approvals, violate any order, writ,
injunction, decree, statute, rule or regulation applicable to PHFG or a PHFG
Subsidiary.
(c) Except for (i) the filing of applications or notices with, and
the consents, approvals or waivers of, as applicable, the FRB, the DOJ, the
Superintendent, the New Hampshire Bank Commissioner, the Massachusetts Board
and the MHPF in connection with the Merger, (ii) the filing and effectiveness
of the Form S-4 with the Commission, (iii) compliance with applicable state
securities or "blue sky" laws and the NASD Bylaws in connection with the
issuance of PHFG Common Stock pursuant to this Agreement, (iv) the approval of
this Agreement by the requisite vote of the shareholders of PHFG, (v) the
filing
28
<PAGE> 33
of Articles of Merger with the Secretary of State of the State of Maine
pursuant to the MBCA and with the Secretary of State of the State of New
Hampshire pursuant to the NHBCA, in each case in connection with the Merger,
and (vi) such corporate approvals and such applications or notices with, and
consents, approvals or waivers of, the OCC, the OTS, the FDIC, the New
Hampshire Bank Commissioner, the Massachusetts Bank Commissioner and the
Central Fund as may be applicable in connection with a Bank Merger, and except
as Previously Disclosed, no consents, approvals or waivers of or filings or
registrations with any Governmental Entity or with any third party are
necessary on the part of PHFG or a PHFG Bank in connection with (i) the
execution and delivery by PHFG of this Agreement and the consummation by PHFG
of the transactions contemplated hereby and (ii) the execution and delivery by
a PHFG Bank of a Bank Merger Agreement and the consummation by a PHFG Bank of
the transactions contemplated thereby.
(d) As of the date hereof, PHFG is not aware of any reason
relating to PHFG or a PHFG Subsidiary (including without limitation Community
Reinvestment Act compliance) why all consents and approvals shall not be
procured from all regulatory agencies having jurisdiction over the transactions
contemplated by this Agreement as shall be necessary for (i) consummation of
the transactions contemplated by this Agreement and the Bank Merger Agreements
and (ii) the continuation by PHFG after the Effective Time of the business of
each of PHFG, the Company and the Company Subsidiaries as such business is
carried on immediately prior to the Effective Time, free of any conditions or
requirements which, in the reasonable opinion of PHFG, could reasonably be
expected to have a Material Adverse Effect on PHFG or the Company or materially
impair the value of the Company and the Company Subsidiaries to PHFG.
4.6 Securities Documents and Regulatory Reports
(a) Since January 1, 1994, PHFG has timely filed with the
Commission all Securities Documents required by the Securities Laws and such
Securities Documents complied in all material respect with the Securities Laws
and did not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
(b) Since January 1, 1994, PHFG and each PHFG Bank have duly filed
with the FRB, the FDIC, the OTS, the Superintendent, the New Hampshire Bank
Commissioner and any other applicable Governmental Entity, as the case may be,
in correct form the reports required to be filed under applicable laws and
regulations and such reports were in all material respects complete and
accurate and in compliance with the requirements of applicable laws and
regulations. In connection with the most recent examinations of PHFG or a PHFG
Subsidiary by the FRB, the FDIC, the OTS, the Superintendent, the New Hampshire
Bank Commissioner or any other applicable Governmental Entity, neither PHFG nor
any PHFG Subsidiary was required to correct or change any action, procedure
29
<PAGE> 34
or proceeding which PHFG believes has not been corrected or changed as required
in all material respects.
4.7 Financial Statements
(a) PHFG has previously delivered or made available to the Company
accurate and complete copies of the PHFG Financial Statements for all periods
prior to the date hereof, which, in the case of the consolidated statements of
financial condition of PHFG as of December 31, 1996, 1995 and 1994 and the
consolidated statements of operations, shareholders' equity and cash flows for
each of the three years ended December 31, 1996, 1995 and 1994, are accompanied
by the audit reports of KPMG Peat Marwick LLP, independent public accountants
with respect to PHFG. The PHFG Financial Statements referred to herein, as
well as PHFG Financial Statements to be delivered pursuant to Section 5.7
hereof, fairly present or will fairly present, as the case may be, the
consolidated financial condition of PHFG as of the respective dates set forth
therein, and the consolidated results of operations, shareholders' equity and
cash flows of PHFG for the respective periods or as of the respective dates set
forth therein.
(b) Each of the PHFG Financial Statements has been or will be, as
the case may be, prepared in accordance with generally accepted accounting
principles consistently applied during the periods involved, except as stated
therein. The books and records of PHFG and the PHFG Subsidiaries are being
maintained in material compliance with applicable legal and accounting
requirements, and all such books and records accurately reflect in all material
respects all dealings and transactions in respect of the business, assets,
liabilities and affairs of PHFG and the PHFG Subsidiaries.
(c) Except and to the extent (i) reflected, disclosed or provided
for in the Securities Documents filed by PHFG prior to the date hereof and (ii)
of liabilities incurred since June 30, 1997 in the ordinary course of business,
neither PHFG nor any PHFG Subsidiary has any liabilities, whether absolute,
accrued, contingent or otherwise, material to the financial condition, results
of operations or business of PHFG on a consolidated basis.
4.8 Material Adverse Change
Since June 30, 1997, no event has occurred or circumstance arisen
that, individually or in the aggregate, has had or could reasonably be expected
to have a Material Adverse Effect on PHFG.
4.9 Environmental Matters
(a) To the best of PHFG's knowledge, PHFG and the PHFG
Subsidiaries are in compliance with all Environmental Laws, except for any
violations of any Environmental Law which would not, singly or in the
aggregate, have a Material Adverse Effect on PHFG. Neither PHFG nor a PHFG
Subsidiary has received any communication alleging that PHFG
30
<PAGE> 35
or a PHFG Subsidiary is not in such compliance and, to the best knowledge of
PHFG, there are no present circumstances that would prevent or interfere with
the continuation of such compliance.
(b) To the best of PHFG's knowledge, none of the properties owned,
leased or operated by PHFG or a PHFG Subsidiary has been or is in violation of
or liable under any Environmental Law, except any such violations or
liabilities which would not singly or in the aggregate have a Material Adverse
Effect on PHFG.
(c) To the best of PHFG's knowledge, there are no past or present
actions, activities, circumstances, conditions, events or incidents that could
reasonably form the basis of any Environmental Claim or other claim or action
or governmental investigation that could result in the imposition of any
liability arising under any Environmental Law against PHFG or a PHFG Subsidiary
or against any person or entity whose liability for any Environmental Claim
PHFG or a PHFG Subsidiary has or may have retained or assumed either
contractually or by operation of law, except such which would not have a
Material Adverse Effect on PHFG.
4.10 Tax Matters
(a) PHFG and the PHFG Subsidiaries have timely filed all federal,
state and local (and, if applicable, foreign) income, franchise, bank, excise,
real property, personal property and other tax returns required by applicable
law to be filed by them (including, without limitation, estimated tax returns,
income tax returns, information returns and withholding and employment tax
returns) and have paid, or where payment is not required to have been made,
have set up an adequate reserve or accrual for the payment of, all taxes
required to be paid in respect of the periods covered by such returns and, as
of the Effective Time, will have paid, or where payment is not required to have
been made, will have set up an adequate reserve or accrual for the payment of,
all taxes for any subsequent periods ending on or prior to the Effective Time.
Neither PHFG nor any PHFG Subsidiary will have any material liability for any
such taxes in excess of the amounts so paid or reserves or accruals so
established.
(b) All federal, state and local (and, if applicable, foreign)
income, franchise, bank, excise, real property, personal property and other tax
returns filed by PHFG and the PHFG Subsidiaries are complete and accurate in
all material respects. Neither PHFG nor any PHFG Subsidiary is delinquent in
the payment of any tax, assessment or governmental charge, and none of them has
requested any extension of time within which to file any tax returns in respect
of any fiscal year or portion thereof which have not since been filed. The
federal, state and local income tax returns of PHFG and the PHFG Subsidiaries
have been examined by the applicable tax authorities (or are closed to
examination due to the expiration of the applicable statute of limitations) and
no deficiencies for any tax, assessment or governmental charge have been
proposed, asserted or assessed (tentatively or otherwise) against PHFG or any
PHFG Subsidiary as a result of such examinations or
31
<PAGE> 36
otherwise which have not been settled and paid. There are currently no
agreements in effect with respect to PHFG or a PHFG Subsidiary to extend the
period of limitations for the assessment or collection of any tax. As of the
date hereof, no audit, examination or deficiency or refund litigation with
respect to such return is pending or, to the best of PHFG's knowledge,
threatened.
(c) Except as Previously Disclosed, neither PHFG nor any PHFG
Subsidiary (i) is a party to any agreement providing for the allocation or
sharing of taxes, (ii) is required to include in income any adjustment pursuant
to Section 481(a) of the Code by reason of a voluntary change in accounting
method initiated by PHFG or a PHFG Subsidiary (nor does PHFG have any knowledge
that the Internal Revenue Service has proposed any such adjustment or change of
accounting method) or (iii) has filed a consent pursuant to Section 341(f) of
the Code or agreed to have Section 341(f)(2) of the Code apply.
4.11 Legal Proceedings
There are no actions, suits, claims, governmental investigations or
proceedings instituted, pending or, to the best knowledge of PHFG threatened
against PHFG or any PHFG Subsidiary or against any asset, interest or right of
PHFG or any PHFG Subsidiary, or against any officer, director or employee of
any of them that in any such case, if decided adversely, would have a Material
Adverse Effect on PHFG. Neither PHFG nor any PHFG Subsidiary is a party to any
order, judgment or decree which has or could reasonably be expected to have a
Material Adverse Effect on PHFG.
4.12 Compliance with Laws
(a) PHFG and each PHFG Subsidiary has all permits, licenses,
certificates of authority, orders and approvals of, and has made all filings,
applications and registrations with, federal, state, local and foreign
governmental or regulatory bodies that are required in order to permit it to
carry on its business as it is presently being conducted and the absence of
which could reasonably be expected to have a Material Adverse Effect on PHFG;
all such permits, licenses, certificates of authority, orders and approvals are
in full force and effect; and to the best knowledge of PHFG, no suspension or
cancellation of any of the same is threatened.
(b) Neither PHFG nor any PHFG Subsidiary is in violation of its
respective Articles of Incorporation or equivalent document or Bylaws, or of
any applicable federal, state or local law or ordinance or any order, rule or
regulation of any federal, state, local or other governmental agency or body
(including, without limitation, all banking (including without limitation all
regulatory capital requirements), securities, municipal securities, safety,
health, environmental, zoning, anti-discrimination, antitrust, and wage and
hour laws, ordinances, orders, rules and regulations), or in default with
respect to any order, writ, injunction or decree of any court, or in default
under any order, license, regulation or
32
<PAGE> 37
demand of any governmental agency, any of which violations or defaults could
reasonably be expected to have a Material Adverse Effect on PHFG; and neither
PHFG nor any PHFG Subsidiary has received any notice or communication from any
federal, state or local governmental authority asserting that PHFG or a PHFG
Subsidiary is in violation of any of the foregoing which could reasonably be
expected to have a Material Adverse Effect on PHFG. Neither PHFG nor any PHFG
Subsidiary is subject to any regulatory or supervisory cease and desist order,
agreement, written directive, memorandum of understanding or written commitment
(other than those of general applicability to all banks, savings associations
or holding companies thereof, as applicable, issued by governmental
authorities), and none of them has received any written communication
requesting that it enter into any of the foregoing.
4.13 Certain Information
None of the information relating to PHFG and the PHFG Subsidiaries to
be included or incorporated by reference in (i) the Form S-4 will, at the time
the Form S-4 and any amendment thereto becomes effective under the Securities
Act, contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and (ii) the Proxy
Statement, as of the date(s) such Proxy Statement is mailed to shareholders of
PHFG and the Company and up to and including the date(s) of the meetings of
shareholders to which such Proxy Statement relates, will contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, provided that information as of a later date shall be
deemed to modify information as of an earlier date. The Proxy Statement mailed
by PHFG to shareholders of the Company and PHFG in connection with the meetings
of shareholders at which this Agreement will be considered by such shareholders
will comply as to form in all material respects with the Securities Act and the
Exchange Act and the rules and regulations promulgated thereunder.
4.14 Employee Benefit Plans
(a) PHFG has Previously Disclosed all stock option, employee stock
purchase and stock bonus plans, qualified pension or profit-sharing plans, any
deferred compensation, consultant, bonus or group insurance contract or any
other incentive, welfare or employee benefit plan or agreement maintained or
contributed to by PHFG or any PHFG Subsidiary for the benefit of employees or
former employees of PHFG or any PHFG Subsidiary (the "PHFG Employee Plans"),
and PHFG has previously furnished or made available to the Company accurate and
complete copies of the same together with (i) the most recent actuarial and
financial reports prepared with respect to any qualified plans, (ii) the most
recent annual reports filed with any governmental agency with respect to each
PHFG Employee Plan and (iii) all rulings and determination letters and any open
requests for rulings or letters that pertain to any qualified plan.
33
<PAGE> 38
(b) None of PHFG, any PHFG Subsidiary, any pension plan maintained
by any of them and qualified under Section 401 of the Code or, to the best of
PHFG's knowledge, any fiduciary of such plan has incurred any material
liability to the PBGC or the Internal Revenue Service with respect to any
employees of PHFG or any PHFG Subsidiary. To the best of PHFG's knowledge, no
reportable event under Section 4043(b) of ERISA has occurred with respect to
any such pension plan, other than any reportable event for which notice to the
PBGC is not required.
(c) Neither PHFG nor any PHFG Subsidiary participates in or has
incurred any liability under Section 4201 of ERISA for a complete or partial
withdrawal from a multi-employer plan (as such term is defined in ERISA).
(d) A favorable determination letter has been issued by the
Internal Revenue Service with respect to each PHFG Employee Plan which is an
"employee pension benefit plan" (as defined in Section 3(2) of ERISA) (a "PHFG
Pension Plan") which is intended to qualify under Section 401 of the Code to
the effect that such plan is qualified under Section 401 of the Code and the
trust associated with such employee pension plan is tax exempt under Section
501 of the Code. No such letter has been revoked or, to the best of PHFG's
knowledge, is threatened to be revoked and PHFG does not know of any ground on
which such revocation may be based. Neither PHFG nor any PHFG Subsidiary has
any liability under any such plan that is not reflected on the consolidated
statement of financial condition of PHFG at June 30, 1997 included in the PHFG
Financial Statements, other than liabilities incurred in the ordinary course of
business in connection therewith subsequent to the date thereof.
(e) To the best of PHFG's knowledge, no prohibited transaction
(which shall mean any transaction prohibited by Section 406 of ERISA and not
exempt under Section 408 of ERISA or Section 4975 of the Code) has occurred
with respect to any PHFG Employee Plan which would result in the imposition,
directly or indirectly, of a material excise tax under Section 4975 of the Code
or otherwise have a Material Adverse Effect on PHFG.
(f) Full payment has been made (or proper accruals have been
established) of all contributions which are required for periods prior to the
date hereof, and full payment will be so made (or proper accruals will be so
established) of all contributions which are required for periods after the date
hereof and prior to the Effective Time, under the terms of each PHFG Employee
Plan or ERISA; no accumulated funding deficiency (as defined in Section 302 of
ERISA or Section 412 of the Code), whether or not waived, exists with respect
to any PHFG Pension Plan, and there is no "unfunded current liability" (as
defined in Section 412 of the Code) with respect to any PHFG Pension Plan.
(g) To the best of PHFG's knowledge, the PHFG Employee Plans have
been operated in compliance in all material respects with the applicable
provisions of ERISA, the
34
<PAGE> 39
Code, all regulations, rulings and announcements promulgated or issued
thereunder and all other applicable governmental laws and regulations.
(h) There are no pending or, to the best knowledge of PHFG,
threatened claims (other than routine claims for benefits) by, on behalf of or
against any of the PHFG Employee Plans or any trust related thereto or any
fiduciary thereof relating to a PHFG Employee Plan.
4.15 Certain Contracts
Neither PHFG nor any PHFG Subsidiary is in default or in
non-compliance, which default or non-compliance could reasonably be expected to
have a Material Adverse Effect on PHFG, under any contract, agreement,
commitment, arrangement, lease, insurance policy or other instrument to which
it is a party or by which its assets, business or operations may be bound or
affected, whether entered into in the ordinary course of business or otherwise
and whether written or oral, and there has not occurred any event that with the
lapse of time or the giving of notice, or both, would constitute such a default
or non-compliance.
4.16 Brokers and Finders
Except for an agreement with McConnell, Budd & Downes, Inc., as
Previously Disclosed, neither PHFG nor any PHFG Subsidiary, nor any of their
respective directors, officers or employees, has employed any broker or finder
or incurred any liability for any broker or finder fees or commissions in
connection with the transactions contemplated hereby.
4.17 Insurance
PHFG believes that it and each PHFG Subsidiary is insured, and during
each of the past three calendar years has been insured, for reasonable amounts
with financially sound and reputable insurance companies against such risks as
companies engaged in a similar business would, in accordance with good business
practice, customarily be insured and has maintained all insurance required by
applicable laws and regulations.
4.18 Properties
All real and personal property owned by PHFG or a PHFG Subsidiary
which is a Significant Subsidiary or presently used by any of them in its
respective business is in an adequate condition (ordinary wear and tear
excepted) and is sufficient to carry on its business in the ordinary course of
business consistent with its past practices. PHFG has good and marketable
title free and clear of all liens, encumbrances, charges, defaults or equities
(other than equities of redemption under applicable foreclosure laws) to all of
the material properties and assets, real and personal, reflected on the
consolidated statement of financial condition of PHFG as of June 30, 1997
included in the PHFG Financial
35
<PAGE> 40
Statements or acquired after such date, other than properties sold by PHFG in
the ordinary course of business, except (i) liens for current taxes not yet due
or payable, (ii) pledges to secure deposits and other liens incurred in the
ordinary course of its banking business, (iii) such imperfections of title,
easements and encumbrances, if any, as are not material in character, amount or
extent and (iv) as reflected on the consolidated statement of financial
condition of PHFG as of June 30, 1997 included in the PHFG Financial
Statements. All real and personal property which is material to PHFG's
business on a consolidated basis and leased or licensed by PHFG or a PHFG
Subsidiary is held pursuant to leases or licenses which are valid and
enforceable in accordance with their respective terms and such leases will not
terminate or lapse prior to the Effective Time.
4.19 Labor
No work stoppage involving PHFG or a PHFG Subsidiary which is a
Significant Subsidiary is pending or, to the best knowledge of PHFG,
threatened. Neither PHFG nor any PHFG Subsidiary is involved in, or threatened
with or affected by, any labor dispute, arbitration, lawsuit or administrative
proceeding involving its employees which reasonably could be expected to have a
Material Adverse Effect on PHFG. Employees of PHFG and any PHFG Subsidiary are
not represented by any labor union nor are any collective bargaining agreements
otherwise in effect with respect to such employees, and to the best of PHFG's
knowledge, there have been no efforts to unionize or organize any employees of
PHFG or a PHFG Subsidiary during the past five years.
4.20 Loans
Each Loan on the books and records of PHFG and its Subsidiaries was
made and has been serviced in all material respects in accordance with
customary lending standards in the ordinary course of business, is evidenced in
all material respects by appropriate and sufficient documentation and, to the
best knowledge of PHFG, constitutes the legal, valid and binding obligation of
the obligor named therein, subject to bankruptcy, insolvency, fraudulent
conveyance and other laws of general applicability relating to or affecting
creditor's rights and to general equity principles.
4.21 Administration of Fiduciary Accounts
PHFG and each of its Subsidiaries has properly administered all
accounts for which it acts as a fiduciary, including but not limited to
accounts for which it serves as a trustee, agent, custodian, personal
representative, guardian, conservator or investment advisor, in accordance with
the terms of the governing documents and applicable laws and regulations,
except for failures to so administer which would not have a Material Adverse
Effect on PHFG. Neither PHFG nor any of its Subsidiaries, nor any of their
respective directors, officers or employees, has committed any breach of trust
with respect to any such fiduciary account and the records for each such
fiduciary account are true and correct and accurately
36
<PAGE> 41
reflect the assets of such fiduciary account, except for breaches of trust and
failure to maintain records which would not have a Material Adverse Effect on
PHFG.
4.22 Required Vote; Ownership of Company Common Stock
(a) The affirmative vote of the holders of a majority of the
issued and outstanding shares of PHFG Common Stock is the requisite vote to
approve this Agreement and the transactions contemplated hereby on behalf of
PHFG.
(b) Except for the Company Option Agreement, none of PHFG or any
of its Subsidiaries, or to PHFG's knowledge, any of its other affiliates or
associates (as such terms are defined under the Exchange Act), owns
beneficially or of record, directly or indirectly, or is a party to any
agreement, arrangement or understanding for the purpose of acquiring, holding,
voting or disposing of, any shares of Company Common Stock (other than shares
held in a fiduciary capacity that are beneficially owned by third parties or as
a result of debts previously contracted).
4.23 Fairness Opinion
PHFG has received a written opinion of McConnell, Budd & Downes, Inc.
to the effect that, as of the date hereof, the Exchange Ratio is fair from a
financial point of view to the holders of the PHFG Common Stock.
4.24 Accounting for the Merger; Reorganization
As of the date hereof, PHFG does not have any reason to believe that
the Merger will fail to qualify (i) for pooling-of-interests treatment under
generally accepted accounting principles or (ii) as a reorganization under
Section 368(a) of the Code.
4.25 Disclosures
None of the representations and warranties of PHFG or any of the
written information or documents furnished or to be furnished by PHFG to the
Company in connection with or pursuant to this Agreement or the consummation of
the transactions contemplated hereby, when considered as a whole, contains or
will contain any untrue statement of a material fact, or omits or will omit to
state any material fact required to be stated or necessary to make any such
information or document, in light of the circumstances, not misleading.
37
<PAGE> 42
ARTICLE V
COVENANTS
5.1 Reasonable Best Efforts
Subject to the terms and conditions of this Agreement, each of the
Company and PHFG shall use its reasonable best efforts in good faith to take,
or cause to be taken, all actions, and to do, or cause to be done, all things
necessary or advisable under applicable laws and regulations so as to permit
consummation of the Merger and the Bank Mergers as promptly as reasonably
practicable and to otherwise enable consummation of the transactions
contemplated hereby, and shall cooperate fully with the other party hereto to
that end.
5.2 Shareholder Meetings
Each of PHFG and the Company shall take all action necessary to
properly call and convene a meeting of its shareholders as soon as practicable
after the date hereof to consider and vote upon this Agreement and the
transactions contemplated hereby. The Board of Directors of PHFG and the Board
of Directors of the Company will recommend that the shareholders of PHFG and
the Company, respectively, approve this Agreement and the transactions
contemplated hereby, provided that the Board of Directors of PHFG or the Board
of Directors of the Company may fail to make such recommendation, or withdraw,
modify or change any such recommendation, if such Board of Directors, after
having consulted with and considered the advice of outside counsel, has
determined that the making of such recommendation, or the failure to withdraw,
modify or change such recommendation, would constitute a breach of the
fiduciary duties of such directors under applicable law.
5.3 Regulatory Matters
(a) The parties hereto shall promptly cooperate with each other in
the preparation and filing of the Form S-4, including the Proxy Statement.
Each of the parties hereto shall use its reasonable best efforts to have the
Form S-4 declared effective under the Securities Act as promptly as practicable
after such filing, and PHFG and the Company each shall thereafter promptly mail
the Proxy Statement to its respective shareholders. PHFG shall use its
reasonable best efforts to obtain all necessary state securities law or "blue
sky" permits and approvals required to carry out the issuance of PHFG Common
Stock pursuant to the Merger and all other transactions contemplated by this
Agreement, and the Company shall furnish all information concerning the Company
and the holders of the Company Common Stock as may be reasonably requested in
connection with any such action.
(b) The parties hereto shall cooperate with each other and use
their reasonable best efforts to promptly prepare and file all necessary
documentation, to effect all applications, notices, petitions and filings, and
to obtain as promptly as practicable all
38
<PAGE> 43
permits, consents, approvals and authorizations of all Governmental Entities
and third parties which are necessary or advisable to consummate the
transactions contemplated by this Agreement (including without limitation the
Merger and the Bank Mergers). PHFG and the Company shall have the right to
review in advance, and to the extent practicable each will consult with the
other on, in each case subject to applicable laws relating to the exchange of
information, all the information which appears in any filing made with or
written materials submitted to any third party or any Governmental Entity 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 Governmental Entities 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.
(c) PHFG and the Company shall, upon request, furnish each other
with all information concerning themselves, their respective Subsidiaries,
directors, officers and shareholders and such other matters as may be
reasonably necessary or advisable in connection with the Proxy Statement, the
Form S-4 or any other statement, filing, notice or application made by or on
behalf of PHFG, the Company or any of their respective Subsidiaries to any
Governmental Entity in connection with the transactions contemplated by this
Agreement and the Bank Merger Agreements.
(d) PHFG and the Company shall promptly furnish each other with
copies of written communications received by PHFG or the Company, as the case
may be, or any of their respective Subsidiaries from, or delivered by any of
the foregoing to, any Governmental Entity in respect of the transactions
contemplated by this Agreement and the Bank Merger Agreements.
5.4 Investigation and Confidentiality
(a) Each party shall permit the other party and its
representatives reasonable access to its properties and personnel, and shall
disclose and make available to such other party all books, papers and records
relating to the assets, stock ownership, properties, operations, obligations
and liabilities of it and its Subsidiaries, including, but not limited to, all
books of account (including the general ledger), tax records, minute books of
meetings of boards of directors (and any committees thereof) and shareholders,
organizational documents, bylaws, material contracts and agreements, filings
with any regulatory authority, accountants' work papers, litigation files, loan
files, plans affecting employees, and any other business activities or
prospects in which the other party may have a reasonable interest, provided
that such access shall be reasonably related to the transactions contemplated
hereby and, in the reasonable opinion of the respective parties providing such
access, not unduly interfere with normal operations. Each party and its
Subsidiaries shall make their respective directors, officers, employees and
agents and authorized representatives (including
39
<PAGE> 44
counsel and independent public accountants) available to confer with the other
party and its representatives, provided that such access shall be reasonably
related to the transactions contemplated hereby and shall not unduly interfere
with normal operations.
(b) All information furnished previously in connection with the
transactions contemplated by this Agreement or pursuant hereto 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 shall return to the party which
furnished such information all documents or other materials containing,
reflecting or referring to such information, shall use its best efforts to keep
confidential all such information, and shall not directly or indirectly use
such information for any competitive or other commercial purposes. The
obligation to keep such information confidential shall continue for five years
from the date the proposed transactions are abandoned but shall not apply to
(i) any information which (x) the party receiving the information can establish
by convincing evidence was already in its possession prior to the disclosure
thereof by the party furnishing the information; (y) was then generally known
to the public; or (z) became known to the public through no fault of the party
receiving the information; or (ii) disclosures pursuant to a legal requirement
or in accordance with an order of a court of competent jurisdiction, provided
that the party which is the subject of any such legal requirement or order
shall use its best efforts to give the other party at least ten business days
prior notice thereof.
(c) No investigation by either of the parties hereto or their
respective representatives shall affect the representations, warranties,
covenants or agreements of the other party set forth herein.
5.5 Press Releases
PHFG and the Company shall agree with each other as to the form and
substance of any press release related to this Agreement or the transactions
contemplated hereby, and consult with each other as to the form and substance
of other public disclosures which may relate to the transactions contemplated
by this Agreement, provided, however, that nothing contained herein shall
prohibit either party, following notification to the other party, from making
any disclosure which in the reasonable judgment of the disclosing party is
required by law or the rules of a national stock exchange or the NASD, as
applicable.
5.6 Business of the Parties
(a) During the period from the date of this Agreement and
continuing until the Effective Time, except as expressly contemplated or
permitted by this Agreement or with the prior written consent of PHFG, the
Company and the Company Subsidiaries shall carry on their respective businesses
in the ordinary course consistent with past practice. The Company will use all
reasonable efforts to (x) preserve its business organization and that of the
Company Subsidiaries intact, (y) keep available to itself and PHFG the present
40
<PAGE> 45
services of the employees of the Company and the Company Subsidiaries and (z)
preserve for itself and PHFG the goodwill of the customers of the Company and
the Company Subsidiaries and others with whom business relationships exist,
provided, however, that the covenants contained in the foregoing clauses (y)
and (z) shall not be deemed to restrict the consolidation by the Company and
the Company New Hampshire Bank of the operations of Community Bankshares, Inc.
and Portsmouth Bank Shares, Inc. and their respective former subsidiaries.
Without limiting the generality of the foregoing, except with the prior written
consent of PHFG, as expressly contemplated hereby or as Previously Disclosed as
of the date hereof, between the date hereof and the Effective Time, the Company
shall not, and shall cause each Company Subsidiary not to:
(i) declare, set aside, make or pay any dividend or other
distribution (whether in cash, stock or property or any combination
thereof) in respect of the Company Common Stock, except for regular
quarterly cash dividends at a rate per share of Company Common Stock
not in excess of $.22 per share, which, if consistent with pooling of
interest accounting treatment for the Merger, shall have the same
record and payment dates as the record and payment dates relating to
dividends on the PHFG Common Stock (as Previously Disclosed by PHFG),
it being the intention of the parties that the shareholders of the
Company receive dividends for any particular quarter on either the
Company Common Stock or the PHFG Common Stock but not both, provided,
however, that nothing contained herein shall be deemed to affect the
ability of a Company Subsidiary to pay dividends on its capital stock
to the Company;
(ii) issue any shares of its capital stock, other than
pursuant to (x) Company Options outstanding as of the date hereof
pursuant to the Company Stock Option Plans, as Previously Disclosed
pursuant to Section 3.1 hereof, (y) the Company Stock Purchase Plan
for any offering period pursuant thereto ended on or before December
31, 1997 and (z) the Company Stock Option Agreement; issue, grant,
modify or authorize any Rights, other than pursuant to the Company
Stock Option Agreement (except shares acquired in a fiduciary capacity
that are beneficially owned by third parties or as a result of debts
previously contracted); purchase any shares of Company Common Stock;
or effect any recapitalization, reclassification, stock dividend,
stock split or like change in capitalization;
(iii) amend its Articles of Incorporation or Bylaws or
equivalent documents; impose, or suffer the imposition, on any share
of stock held by the Company in a Company Subsidiary of any material
lien, charge or encumbrance or permit any such lien, charge or
encumbrance to exist; or waive or release any material right or cancel
or compromise any material debt or claim;
(iv) increase the rate of compensation of any of its
directors, officers or employees, or pay or agree to pay any bonus or
severance to, or provide any other new employee benefit or incentive
to, any of its directors, officers or employees,
41
<PAGE> 46
except (i) as may be required pursuant to binding commitments existing
on the date hereof and (ii) in the case of employees who are not
officers above the level of Vice President, such as may be granted in
the ordinary course of business consistent with past practice;
(v) enter into or, except as may be required by law,
modify any pension, retirement, stock option, stock purchase, stock
appreciation right, savings, profit sharing, deferred compensation,
supplemental retirement, consulting, bonus, group insurance or other
employee benefit, incentive or welfare contract, plan or arrangement,
or any trust agreement related thereto, in respect of any of its
directors, officers or employees; or make any contributions to or on
behalf of any Company Employee Plan not in the ordinary course of
business consistent with past practice;
(vi) enter into (w) any agreement, arrangement or
commitment not made in the ordinary course of business, (x) any
agreement, indenture or other instrument relating to the borrowing of
money by the Company or a Company Subsidiary or guarantee by the
Company or a Company Subsidiary of any such obligation, except in the
case of a Company Subsidiary for deposits, federal funds purchased,
FHLB advances and securities sold under agreements to repurchase in
the ordinary course of business consistent with past practice, (y) any
agreement, arrangement or commitment relating to the employment of an
employee, or amend any such existing agreement, arrangement or
commitment, provided that the Company or a Company Subsidiary may
employ an employee if necessary to operate the business of the Company
or a Company Subsidiary in the ordinary course of business consistent
with past practice and if the employment of such employee is
terminable by the Company or the Company Subsidiary at will without
liability, other than as required by law; or (z) any contract,
agreement or understanding with a labor union;
(vii) change its method of accounting in effect for the
year ended December 31, 1996, except as required by changes in laws or
regulations or generally accepted accounting principles, or change any
of its methods of reporting income and deductions for federal income
tax purposes from those employed in the preparation of its federal
income tax return for the year ended December 31, 1996, except as
required by changes in laws or regulations;
(viii) purchase or otherwise acquire, or sell or otherwise
dispose of, any assets or incur any liabilities other than in the
ordinary course of business consistent with past practices and
policies;
(ix) make any capital expenditures in excess of $100,000
individually or $1.0 million in the aggregate, other than pursuant to
binding commitments existing on the date hereof and other than
expenditures necessary to maintain existing assets in good repair;
42
<PAGE> 47
(x) file any applications or make any contract with
respect to branching or site location or relocation;
(xi) acquire in any manner whatsoever (other than to
realize upon collateral for a defaulted loan) any business or entity
or enter into any new line of business;
(xii) enter into any futures contract, option contract,
interest rate caps, interest rate floors, interest rate exchange
agreement or other similar agreement, other than in the ordinary
course of business consistent with past practice;
(xiii) enter or agree to enter into any agreement or
arrangement granting any preferential right to purchase any of its
assets or rights or requiring the consent of any party to the transfer
and assignment of any such assets or rights;
(xiv) take any action that would prevent or impede the
Merger from qualifying (A) for pooling-of-interests accounting
treatment under generally accepted accounting principles or (B) as a
reorganization within the meaning of Section 368(a) of the Code,
provided, however, that nothing contained herein shall limit the
ability of the Company to exercise its rights under the PHFG Stock
Option Agreement;
(xv) take any action that would or could reasonably be
expected to result in any of the representations and warranties of the
Company contained in this Agreement not to be true and correct in any
material respect at or prior to the Effective Time, or in any of the
conditions to the Merger set forth in Article VI hereof not being
satisfied or in violation of any provision of this Agreement, except
in each case as may be required by applicable law; or
(xvi) agree to do any of the foregoing.
(b) During the period from the date of this Agreement and
continuing until the Effective Time, except as expressly contemplated or
permitted by this Agreement or with the prior written consent of the Company,
PHFG and the PHFG Subsidiaries shall conduct their business in substantially
the same manner as heretofore conducted, it being understood and agreed that
nothing contained herein shall prevent PHFG from acquiring another financial
institution or company engaged in businesses in which it is engaged or from
entering into new lines of business, whether through acquisition or otherwise.
Except with the prior written consent of the Company or as expressly
contemplated hereby, between the date hereof and the Effective Time, PHFG shall
not, and shall cause each PHFG Subsidiary which is a Significant Subsidiary not
to:
(i) declare, set aside, make or pay any dividend or other
distribution (whether in cash, stock or property or any combination
thereof) in respect of the PHFG Common Stock, except for regular
quarterly cash dividends which are not in excess of $.25 per share of
PHFG Common Stock, provided, however, that nothing
43
<PAGE> 48
contained herein shall be deemed to affect the ability of a PHFG
Subsidiary to pay dividends on its capital stock to PHFG;
(ii) amend its Articles of Incorporation or equivalent
document or Bylaws in a manner which would adversely affect in any
manner the terms of the PHFG Common Stock or the ability of PHFG or a
PHFG Bank to consummate the transactions contemplated hereby;
(iii) take any action that would prevent or impede the
Merger from qualifying (A) for pooling-of-interests accounting
treatment under generally accepted accounting principles or (B) as a
reorganization within the meaning of Section 368 of the Code;
provided, however, that nothing contained herein shall limit the
ability of PHFG to exercise its rights under the Company Stock Option
Agreement;
(iv) take any action that would or could reasonably be
expected to result in any of the representations and warranties of
PHFG contained in this Agreement not to be true and correct in any
material respect at or prior to the Effective Time, or in any of the
conditions to the Merger set forth in Article VI hereof not being
satisfied or in violation of this Agreement, except in each case as
may be required by applicable law; or
(v) agree to do any of the foregoing.
(c) The Company shall not authorize or permit any of its
directors, officers, employees or agents to directly or indirectly solicit,
initiate or encourage any inquiries relating to, or the making of any proposal
which constitutes, an Acquisition Transaction (as defined below), or, except to
the extent legally required for the discharge of the fiduciary duties of the
Board of Directors of the Company, as advised by counsel, (i) recommend or
endorse an Acquisition Transaction, (ii) participate in any discussions or
negotiations regarding an Acquisition Transaction or (iii) provide any third
party with any nonpublic information in connection with any inquiry or proposal
relating to an Acquisition Transaction (other than in each case with or to PHFG
or an affiliate of PHFG). The Company will immediately cease and cause to be
terminated any existing activities, discussions or negotiations previously
conducted with any parties other than PHFG with respect to any of the
foregoing, and will take all actions necessary or advisable to inform the
appropriate individuals or entities referred to in the first sentence hereof of
the obligations undertaken in this Section 5.6(c). The Company will notify
PHFG immediately if any inquiries or proposals relating to an Acquisition
Transaction are received by, any such information is requested from, or any
such negotiations or discussions are sought to be initiated or continued with,
the Company, and the Company will promptly inform PHFG in writing of all of the
relevant details with respect to the foregoing. As used in this Agreement,
"Acquisition Transaction" shall mean (i) a merger or consolidation, or any
similar transaction, involving the Company or a Company Subsidiary, (ii) a
purchase, lease or other acquisition of all or a substantial portion of the
assets or liabilities of the Company
44
<PAGE> 49
or a Company Subsidiary (other than CFX Funding L.L.C.) or (iii) a purchase or
other acquisition (including by way of share exchange, tender offer, exchange
offer or otherwise) of an interest in any class or series of equity securities
of the Company (other than as permitted by Section 5.6(a)(ii) hereof) or a
Company Subsidiary.
5.7 Current Information
During the period from the date of this Agreement to the Effective
Time, each party shall, upon the request of the other party, cause one or more
of its designated representatives to confer on a monthly or more frequent basis
with representatives of the other party regarding its financial condition,
operations and business and matters relating to the completion of the
transactions contemplated hereby. As soon as reasonably available, but in no
event more than 45 days after the end of each calendar quarter ending after the
date of this Agreement (other than the last quarter of each fiscal year ending
December 31), the Company and PHFG will deliver to the other party its
quarterly report on Form 10-Q under the Exchange Act, and, as soon as
reasonably available, but in no event more than 90 days after the end of each
fiscal year, the Company and PHFG will deliver to the other party its Annual
Report on Form 10-K. Within 25 days after the end of each month, the Company
and PHFG will deliver to the other party a consolidated balance sheet and a
consolidated statement of operations, without related notes, for such month
prepared in accordance with generally accepted accounting principles.
5.8 Indemnification; Insurance
(a) From and after the Effective Time through the sixth
anniversary of the Effective Time, PHFG (the "Indemnifying Party") shall
indemnify and hold harmless, to the fullest extent permitted by applicable law,
each present and former director, officer and employee of the Company or a
Company Subsidiary, as applicable, determined as of the Effective Time (the
"Indemnified Parties") against any costs or expenses (including reasonable
attorneys' fees), judgments, fines, losses, claims, damages or liabilities
incurred in connection with any claim, action, suit, proceeding or
investigation, whether civil, criminal, administrative or investigative (a
"Claim"), arising out of matters existing or occurring at or prior to the
Effective Time, whether asserted or claimed prior to, at or after the Effective
Time, arising in whole or in part out of, or pertaining to (i) the fact that he
or she was a director, officer or employee of the Company or any Company
Subsidiary or any of their respective predecessors or (ii) this Agreement, the
Company Stock Option Agreement, the PHFG Stock Option Agreement or any of the
agreements or transactions contemplated hereby or thereby, provided, however,
that all rights to indemnification in respect of any claim asserted or made
within such period shall continue until the final disposition of such claim.
(b) PHFG agrees that all rights to indemnification and all
limitations on liability existing in favor of the Indemnified Parties as
provided in their respective Articles or Certificates of Incorporation, Bylaws
or similar governing documents as in effect as of the
45
<PAGE> 50
date hereof with respect to matters occurring prior to the Effective Time shall
survive the Merger and the Bank Mergers and shall continue in full force and
effect, and shall be honored by PHFG, its Subsidiaries or their respective
successors as if they were the indemnifying party thereunder, without any
amendment thereto, for a period of six years from the Effective Time; provided,
however that all rights to indemnification in respect of any Claim asserted or
made within such period shall continue until the final disposition of such
Claim.
(c) Any Indemnified Party wishing to claim indemnification under
Section 5.8(a), upon learning of any such claim, action, suit, proceeding or
investigation, shall promptly notify the Indemnifying Party, but the failure to
so notify shall not relieve the Indemnifying Party of any liability it may have
to such Indemnified Party if such failure does not materially prejudice the
Indemnifying Party. In the event of any such claim, action, suit, proceeding
or investigation (whether arising before or after the Effective Time), (i) the
Indemnifying Party shall have the right to assume the defense thereof and the
Indemnifying Party shall not be liable to such Indemnified Parties for any
legal expenses of other counsel or any other expenses subsequently incurred by
such Indemnified Parties in connection with the defense thereof, except that if
the Indemnifying Party elects not to assume such defense or counsel for the
Indemnified Parties advises that there are issues which raise conflicts of
interest between the Indemnifying Party and the Indemnified Parties, the
Indemnified Parties may retain counsel which is reasonably satisfactory to the
Indemnifying Party, and the Indemnifying Party shall pay, promptly as
statements therefor are received, the reasonable fees and expenses of such
counsel for the Indemnified Parties (which may not exceed one firm in any
jurisdiction), (ii) the Indemnified Parties will cooperate in the defense of
any such matter, (iii) the Indemnifying Party shall not be liable for any
settlement effected without its prior written consent and (iv) the Indemnifying
Party shall have no obligation hereunder in the event that a federal or state
banking agency or a court of competent jurisdiction shall determine that
indemnification of an Indemnified Party in the manner contemplated hereby is
prohibited by applicable laws and regulations.
(d) PHFG shall use its reasonable best efforts to maintain the
Company's existing directors' and officers' liability insurance policy (or a
policy providing coverage on substantially the same terms and conditions) for
acts or omissions occurring prior to the Effective Time by persons who are
currently covered by such insurance policy maintained by the Company for a
period of three years following the Effective Time, provided, however, that in
no event shall PHFG expend, in order to obtain such insurance, any amount per
annum in excess of 150% of the amount of the actual annual premium paid as of
the date hereof by the Company for such insurance (the "Maximum Amount"), and
provided further that if the amount of the annual premium necessary to maintain
or procure such insurance coverage exceeds the Maximum Amount, PHFG shall use
its reasonable best efforts to maintain the most advantageous policy of
directors' and officers' insurance obtainable for an annual premium equal to
the Maximum Amount. The Company represents to PHFG that the Maximum Amount is
$107,775.
46
<PAGE> 51
(e) In the event that PHFG or any of its respective successors or
assigns (i) consolidates with or merges into any other person and shall not be
the continuing or surviving corporation or entity of such consolidation or
merger or (ii) transfers all or substantially all of its properties and assets
to any person, then, and in each such case the successors and assigns of such
entity shall assume the obligations set forth in this Section 5.8.
(f) From and after the Effective Time, PHFG shall assume all
indemnification and insurance obligations of the Company under acquisition
agreements entered into by the Company prior to the date hereof, as Previously
Disclosed by the Company to PHFG.
(g) The provisions of this Section 5.8 are expressly intended to
be for the irrevocable benefit of, and shall be enforceable by, each
Indemnified Party and his or her heirs and representatives.
5.9 Employee Benefit Plans and Arrangements
(a) As soon as administratively practicable after the Effective
Time, PHFG shall take all reasonable action so that employees of the Company
and the Company Subsidiaries shall be entitled to participate in the PHFG
Employee Plans of general applicability to the same extent as similarly
situated employees of PHFG and its Subsidiaries (it being understood that
inclusion of the employees of the Company and its Subsidiaries in the PHFG
Employee Benefit Plans may occur at different times with respect to different
plans). For purposes of determining eligibility to participate in, the vesting
of benefits and for all other purposes (but not for accrual of pension
benefits) under the PHFG Employee Plans, PHFG and the PHFG Employee Plans shall
recognize years of service with the Company, any Company Subsidiary or any
predecessor thereof or entity acquired by the Company or a Company Subsidiary
as such service is recognized by and reflected on the records of the Company
and the Company Employee Plans. PHFG and the PHFG Employee Plans shall provide
employees of the Company and the Company Subsidiaries with full credit for
copayment, deductible amounts and out-of-pocket maximums under any Company
Employee Plans paid by such employees prior to the Effective Time and shall not
apply any preexisting condition, waiting period or other similar limitations to
such employees, except to the extent that any of the same is applicable to
employees of PHFG and its Subsidiaries.
(b) All employees of the Company or a Company Subsidiary as of the
Effective Time shall become employees of PHFG or a PHFG Subsidiary as of the
Effective Time, provided that PHFG or a PHFG Subsidiary shall have no
obligation to continue the employment of any such person and nothing contained
in this Agreement shall give any employee of the Company or any Company
Subsidiary a right to continuing employment with PHFG or a PHFG Subsidiary
after the Effective Time. An employee of the Company or a Company Subsidiary
(other than an employee who is party to an employment agreement or a
change-in-control agreement or who is entitled to severance benefits in
accordance with the terms, including without limitation, termination dates, of
a severance
47
<PAGE> 52
plan formerly maintained by Community Bankshares, Inc. or The Safety Fund
Corporation) who is involuntarily terminated other than for cause following
the Effective Time shall be entitled to receive severance payments in
accordance with, and to the extent provided in, the PHFG employee severance
plan applicable to the Merger, a copy of which the Company acknowledges has
been provided to it by PHFG, provided that, notwithstanding anything to the
contrary contained herein, no employee shall be entitled to such benefits
unless the Company terminates its existing severance plan effective immediately
prior to the Effective Time and provides evidence reasonably satisfactory to
PHFG of such termination.
(c) Following the Effective Time, PHFG shall, and shall cause its
appropriate Subsidiaries to, honor in accordance with their terms the
employment agreements and change-in-control agreements which have been
Previously Disclosed by the Company to PHFG as of the date hereof.
(d) Except as otherwise provided herein, nothing in this Section
5.10 shall be interpreted as preventing PHFG or its Subsidiaries from amending,
modifying or terminating any of the Company Employee Plans, and any contracts,
arrangements, commitments or understandings of the Company or its Subsidiaries,
in accordance with their terms and applicable law.
5.10 Stock Exchange Listing
PHFG shall use all reasonable efforts to cause the shares of PHFG
Common Stock to be issued in connection with the Merger to be approved for
quotation on the Nasdaq Stock Market's National Market, subject to official
notice of issuance, as of or prior to the Effective Time.
5.11 The Bank Mergers
PHFG and the Company shall take all action necessary and appropriate,
including causing the entering into of appropriate merger agreements (the "Bank
Merger Agreements"), to cause (i) the Company Massachusetts Banks to merge with
and into the PHFG Massachusetts Bank and (ii) the Company New Hampshire Bank to
merge with and into the PHFG New Hampshire Bank (individually a "Bank Merger"
and collectively the "Bank Mergers"), in each case in accordance with
applicable laws and regulations and the terms of the applicable Bank Merger
Agreement and as soon as practicable after consummation of the Merger.
5.12 Affiliates; Restrictions on Resale
(a) The Company has Previously Disclosed to PHFG, and PHFG has
Previously Disclosed to the Company, a schedule of each person that, to the
best of its knowledge, is deemed to be an "affiliate" of the Company and PHFG,
respectively (each an "Affiliate"),
48
<PAGE> 53
as that term is used in Rule 145 under the Securities Act or Accounting Series
Releases 130 and 135 of the Commission.
(b) Each of the Company and PHFG shall use its reasonable best
efforts to cause each person who may be deemed to be an Affiliate of the
Company and PHFG, respectively, to execute and deliver to PHFG as soon as
practicable after the date of this Agreement, and in any event prior to the
date of the meetings of shareholders of PHFG and the Company to be called
pursuant to Section 5.2 hereof, a written agreement in the forms previously
provided by PHFG to the Company.
5.13 Disclosure Supplements
From time to time prior to the Effective Time, each party shall
promptly supplement or amend any materials Previously Disclosed and delivered
to the other party pursuant hereto with respect to any matter hereafter arising
which, if existing, occurring or known at the date of this Agreement, would
have been required to be set forth or described in materials Previously
Disclosed to the other party or which is necessary to correct any information
in such materials or statement herein which has been rendered materially
inaccurate thereby; no such supplement or amendment to such materials shall be
deemed to have modified the representations, warranties and covenants of the
parties for the purpose of determining whether the conditions set forth in
Article VI hereof have been satisfied.
5.14 Failure to Fulfill Conditions
In the event that either of the parties hereto determines that a
condition to its respective obligations to consummate the transactions
contemplated hereby cannot be fulfilled on or prior to the termination of this
Agreement, it will promptly notify the other party or parties. Each party will
promptly inform the other party or parties of any facts applicable to it that
would be likely to prevent or materially delay approval of the Merger or a Bank
Merger by any Governmental Entity or third party or which would otherwise
prevent or materially delay completion of the Merger or a Bank Merger.
ARTICLE VI
CONDITIONS PRECEDENT
6.1 Conditions Precedent - PHFG and the Company
The respective obligations of PHFG and the Company to effect the
transactions contemplated by this Agreement shall be subject to satisfaction of
the following conditions at or prior to the Effective Time.
49
<PAGE> 54
(a) All corporate action necessary to authorize the execution and
delivery of this Agreement and consummation of the Merger shall have been duly
and validly taken by PHFG and the Company, including approval by the requisite
vote of the respective shareholders of PHFG and the Company of this Agreement,
and all corporate and shareholder action necessary to authorize the execution
and delivery of the Bank Merger Agreements and consummation of the transactions
contemplated thereby shall have been duly and validly taken by the Company
Banks, the PHFG New Hampshire Bank and the PHFG Massachusetts Bank.
(b) All approvals, consents and waivers from any Governmental
Entity the approval, consent or waiver of which is required for the
consummation of the Merger and the Bank Mergers shall have been received and
all statutory waiting periods in respect thereof have expired, provided,
however, that no approval, consent or waiver referred to in this Section 6.1(b)
shall be deemed to have been received if it shall include any condition or
requirement that, individually or in the aggregate, would so materially reduce
the economic or business benefits of the transactions contemplated by this
Agreement to PHFG that had such condition or requirement been known PHFG, in
its reasonable judgment, would not have entered into this Agreement.
(c) None of PHFG, the Company or their respective Subsidiaries
shall be subject to any statute, rule, regulation, injunction or other order or
decree which shall have been enacted, entered, promulgated or enforced by any
Governmental Entity which prohibits, restricts or makes illegal consummation of
the Merger or a Bank Merger.
(d) The Form S-4 shall have become effective under the Securities
Act, and PHFG shall have received all state securities laws or "blue sky"
permits and other authorizations or there shall be exemptions from registration
requirements necessary to issue PHFG Common Stock in connection with the
Merger, and neither the Form S-4 nor any such permit, authorization or
exemption shall be subject to a stop order or threatened stop order by the
Commission or any state securities authority.
(e) The shares of PHFG Common Stock to be issued in connection
with the Merger shall have been approved for listing on the Nasdaq Stock
Market's National Market, subject to official notice of issuance.
(f) KPMG Peat Marwick LLP shall have issued a letter dated as of
the Effective Time to PHFG and to the Company to the effect that, based on a
review of this Agreement and related agreements and the facts and circumstances
then known to it, the Merger shall be accounted for as a pooling-of-interests
under generally accepted accounting principles, and PHFG and the Company shall
have received from the Affiliates of the other party the agreements referred to
in Section 5.12(b) hereof to the extent necessary to ensure in the reasonable
judgment of PHFG and the Company that the Merger shall be accounted for in such
manner.
50
<PAGE> 55
6.2 Conditions Precedent - The Company
The obligations of the Company to effect the transactions contemplated
by this Agreement shall be subject to satisfaction of the following conditions
at or prior to the Effective Time unless waived by the Company pursuant to
Section 7.4 hereof.
(a) The representations and warranties of PHFG as set forth in
Article IV hereof shall be true and correct as of the date of this Agreement
and as of the Effective Time as though made on and as of the Effective Time (or
on the date when made in the case of any representation and warranty which
specifically relates to an earlier date), provided, however, that
notwithstanding anything herein to the contrary, this Section 6.2(a) shall be
deemed to have been satisfied even if such representations or warranties are
not true and correct (exclusive of any exceptions in such representations and
warranties relating to materiality or Material Adverse Effect) unless the
failure of any of the representations or warranties to be so true and correct
would have, or could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect on PHFG.
(b) PHFG shall have performed in all material respects all
obligations and covenants required to be performed by it pursuant to this
Agreement on or prior to the Effective Time.
(c) PHFG shall have delivered to the Company a certificate, dated
the date of the Closing and signed by its Chairman, President and Chief
Executive Officer and by its Chief Financial Officer, to the effect that the
conditions set forth in Sections 6.2(a) and 6.2(b) have been satisfied.
(d) The Company shall have received the written opinion(s) of
Elias, Matz, Tiernan & Herrick L.L.P., Carol L. Mitchell, Esq. and/or local
counsel reasonably acceptable to the Company, dated the date of the Closing,
that collectively address the matters set forth in Exhibit B hereto.
(e) The Company shall have received the written opinion of Arnold
& Porter (which shall be based on such written representations (including
without limitation the standard representations set forth in Revenue Procedure
86-42, 1986-2 C.B. 772) from PHFG, the Company and others as such counsel shall
reasonably request as to factual matters) to the effect that the Merger will
constitute a reorganization within the meaning of Section 368(a) of the Code
and to the effect that (i) except for cash received in lieu of fractional share
interests, holders of Company Common Stock who receive PHFG Common Stock in the
Merger will not recognize gain or loss for federal income tax purposes, (ii)
the basis of such PHFG Common Stock will equal the basis of the Company Common
Stock for which it is exchanged, reduced by any amount allocable to a
fractional share interest for which cash is received, and (iii) the holding
period of such PHFG Common Stock will include the holding period of the Company
Common Stock for which it is exchanged,
51
<PAGE> 56
assuming that such stock is a capital asset in the hands of the holder thereof
at the Effective Time.
(f) There shall not be pending any proceeding initiated by any
Governmental Entity to seek an order, injunction or decree which prevents
consummation of the Merger or a Bank Merger.
(g) PHFG shall have furnished the Company with such certificates
of its respective officers or others and such other documents to evidence
fulfillment of the conditions set forth in Sections 6.1 and 6.2 as the Company
may reasonably request.
6.3 Conditions Precedent - PHFG
The obligations of PHFG to effect the transactions contemplated by
this Agreement shall be subject to satisfaction of the following conditions at
or prior to the Effective Time unless waived by PHFG pursuant to Section 7.4
hereof.
(a) The representations and warranties of the Company set forth in
Article III hereof shall be true and correct as of the date of this Agreement
and as of the Effective Time as though made on and as of the Effective Time (or
on the date when made in the case of any representation and warranty which
specifically relates to an earlier date), provided, however, that
notwithstanding anything herein to the contrary, this Section 6.3(a) shall be
deemed to have been satisfied even if such representations or warranties are
not true and correct (exclusive of any exceptions in such representations and
warranties relating to materiality or Material Adverse Effect) unless the
failure of any of the representations or warranties to be so true and correct
would have, or could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect on the Company.
(b) The Company shall have performed in all material respects all
obligations and covenants required to be performed by it pursuant to this
Agreement on or prior to the Effective Time.
(c) The Company shall have delivered to PHFG a certificate, dated
the date of the Closing and signed by its President and Chief Executive Officer
and by its Chief Financial Officer, to the effect that the conditions set forth
in Sections 6.3(a) and 6.3(b) have been satisfied.
(d) PHFG shall have received the written opinion(s) of Arnold &
Porter and/or Devine, Millimet & Branch, Professional Association that
collectively address the matters set forth in Exhibit C hereto.
(e) PHFG shall have received the written opinion of Elias, Matz,
Tiernan & Herrick L.L.P. (which shall be based on such written representations
(including without limitation the standard representations set forth in Revenue
Procedure 86-42, 1986-2 C.B.
52
<PAGE> 57
722) from PHFG, the Company and others as such counsel shall reasonably request
as to factual matters) to the effect that the Merger and each of the Bank
Mergers will constitute a reorganization within the meaning of Section 368(a)
of the Code and that, accordingly, for federal income tax purposes no gain or
loss will be recognized by PHFG, the Company or any PHFG Bank or Company Bank
which is a party to a Bank Merger (except to the extent that any such party may
be required to recognize income due to the recapture of bad debt reserves as a
result of a Bank Merger).
(f) The consent, approval or waiver of each person (other than the
Governmental Entities referred to in Section 6.1(b) hereof) whose consent,
approval or waiver shall be required in connection with the Merger under any
loan or credit agreement, note, mortgage, indenture, lease, license or other
agreement or instrument to which the Company or any of its Subsidiaries is a
party or is otherwise bound shall have been obtained, except those consents or
approvals for which failure to obtain would not have, or could not reasonably
be expected to have, individually or in the aggregate, a Material Adverse
Effect on the Company.
(g) There shall not be pending any proceeding initiated by any
Governmental Entity to seek an order, injunction or decree which prevents
consummation of the Merger or a Bank Merger.
(h) The Company shall have furnished PHFG with such certificates
of its officers or others and such other documents to evidence fulfillment of
the conditions set forth in Sections 6.1 and 6.3 as PHFG may reasonably
request.
ARTICLE VII
TERMINATION, WAIVER AND AMENDMENT
7.1 Termination
This Agreement may be terminated:
(a) at any time on or prior to the Effective Time, by the mutual
consent in writing of the parties hereto;
(b) at any time on or prior to the Effective Time, by either PHFG
or the Company (provided that the terminating party is not then in material
breach of any representation, warranty, covenant or other agreement contained
herein) in writing if there shall have been a breach by the other party of (i)
any covenant or undertaking of it contained herein or (ii) any representation
or warranty of it contained herein, which in the case of the Company would
have, or could reasonably be expected to have, a Material Adverse Effect on the
Company and in the case of PHFG would have, or could reasonably be expected to
have, a Material Adverse Effect on PHFG, in any case if such breach has
53
<PAGE> 58
not been cured by the earlier of 30 days after the date on which written notice
of such breach is given to the party committing such breach or the Effective
Time;
(c) at any time, by any party hereto in writing, if any of the
applications for prior approval referred to in Section 5.3 hereof are denied or
withdrawn at the request or recommendation of the applicable Governmental
Entity or are approved in a manner which does not satisfy the requirements of
Section 6.1(b) hereof, and the time period for appeals and requests for
reconsideration has run, or if any Governmental Entity of competent
jurisdiction shall have issued a final nonappealable order enjoining or
otherwise prohibiting the Merger or a Bank Merger, unless in each such case
such occurrence shall be due to the failure of the party seeking to terminate
to perform or observe in any material respect its agreements set forth herein
to be performed or observed by such party at or before the Effective Time;
(d) at any time, by any party hereto in writing, if the
shareholders of PHFG or the Company do not approve this Agreement after a vote
taken thereon at a meeting duly called for such purpose (including any
adjournment thereof), unless the failure of such occurrence shall be due to the
failure of the party seeking to terminate to perform or observe in any material
respect its agreements set forth herein to be performed or observed by such
party at or before such meetings of shareholders;
(e) by either the Company or PHFG in writing if the Effective Time
has not occurred by the close of business on the first anniversary of the date
hereof, provided that this right to terminate shall not be available to any
party whose failure to perform an obligation in breach of such party's
obligations under this Agreement has been the cause of, or resulted in, the
failure of the Effective Time to occur by such date;
(f) by either the Board of Directors of PHFG or the Board of
Directors of the Company if the Board of Directors of the other party shall
have withdrawn, modified or changed in a manner adverse to the terminating
party its recommendation of this Agreement and the transactions contemplated
hereby pursuant to Section 5.2 hereof;
(g) by PHFG if during the 15-day period following the date of this
Agreement it provides written notice to the Company to the effect that
additional matters Previously Disclosed to PHFG by the Company within such
period so materially and adversely affect the financial consequences of the
transactions contemplated hereby that in its reasonable judgment it would not
have entered into this Agreement had they been known as of the date hereof;
provided, however, that, if PHFG fails to terminate this Agreement within such
period, the matters so disclosed to PHFG by the Company will have been deemed
to have been disclosed to PHFG as of the date hereof; and
(h) by the Company, if its Board of Directors so determines by a
vote of a majority of the members of its entire Board, at any time during the
three-day period commencing with the Determination Date if both of the
following conditions are satisfied:
54
<PAGE> 59
(i) the number obtained by dividing the Average Closing
Price on the Determination Date by the Starting Price (the "PHFG
Ratio") shall be less than .80; and
(ii) the PHFG Ratio shall be less than the number obtained
by dividing the Final Index Price on the Determination Date by the
Initial Index Price on the Starting Date and subtracting 0.15 from the
quotient in this clause (ii) (such number being referred to herein as
the "Index Ratio");
subject, however, to the following three sentences. If the Company elects to
exercise its termination right pursuant to this Section 7.1(h), it shall give
written notice to PHFG (provided that such notice of election to terminate may
be withdrawn at any time within the aforementioned three-day period). During
the three-day period commencing with its receipt of such notice, PHFG shall
have the option to increase the consideration to be received by the holders of
the Company Common Stock hereunder, by adjusting the Exchange Ratio (calculated
to the nearest one one-thousandth) to equal the lesser of (x) a number (rounded
to the nearest thousandth) obtained by dividing (A) the product of the Starting
Price, 0.80 and the Exchange Ratio by (B) the Average Closing Price on the
Determination Date and (y) a number (rounded to the nearest thousandth)
obtained by dividing (A) the product of the Index Ratio and the Exchange Ratio
by (B) the PHFG Ratio. If PHFG so elects within such three-day period, it
shall give prompt written notice to the Company of such election and the
revised Exchange Ratio, whereupon no termination shall have occurred pursuant
to this Section 7.1(h) and this Agreement shall remain in effect in accordance
with its terms (except as the Exchange Ratio shall have been so modified).
For purposes of this Section 7.1(h), the following terms shall have
the meanings indicated:
"Average Closing Price" shall mean the average of the closing
prices of a share of PHFG Common Stock on the Nasdaq Stock Market's
National Market (as reported in The Wall Street Journal, or if not
reported therein, in another authoritative source) during the period
of 20 trading days ending on the trading day prior to the
Determination Date, rounded to the nearest whole cent.
"Determination Date" shall mean the date on which the last
required approval of a Governmental Entity is obtained with respect to
the Merger and the Bank Mergers, without regard to any requisite
waiting period in respect thereof.
"Final Index Price" shall mean the sum of the Final Price for
each company comprising the Index Group multiplied by the appropriate
weighting.
"Final Price," with respect to any company belonging to the
Index Group, shall mean the average of the daily closing sales prices
of a share of common stock of such
55
<PAGE> 60
company, as reported on the consolidated transaction reporting system
for the market or exchange on which such common stock is principally
traded, during the period of 20 trading days ending on the trading day
prior to the Determination Date.
"Index Group" shall mean the 22 bank holding companies listed
below, the common stock of which shall be publicly traded and as to
which there shall not have been a publicly announced proposal since
the Starting Date and before the Determination Date for any such
company to be acquired. In the event that the common stock of any
such company ceases to be publicly traded or a proposal to acquire any
such company is announced after the Starting Date and before the
Determination Date, such company shall be removed from the Index
Group, and the weights (which have been determined based on the number
of outstanding shares of common stock and the market prices of such
stock) attributed to the remaining companies shall be adjusted
proportionately for purposes of determining the Final Index Price.
The 22 bank holding companies and the weights attributed to them are
as follows:
<TABLE>
<CAPTION>
Bank Holding Company Weighting
-------------------- ---------
<S> <C>
City National Corp. 7.7 %
Westamerica Bancorporation 7.0
Webster Financial Corp. 4.9
Affiliated Community Bancorp 1.1
SIS Bancorp 1.1
UST Corp. 4.1
CCB Financial Corp. 10.7
HUBCO, Inc. 4.2
Arrow Financial Corp. 1.0
BSB Bancorp, Inc. 1.3
Community Bank System, Inc. 1.2
Evergreen Bancorp 1.0
NBT Bancorp, Inc. 1.2
North Fork Bancorporation, Inc. 11.0
FirstMerit Corporation 9.1
Keystone Financial, Inc. 10.4
Sovereign Bancorp Inc. 9.2
Washington Trust Bancorp 0.9
Banknorth Group, Inc. 2.6
Chittenden Corp. 2.7
Vermont Financial Services 1.9
One Valley Bancorp Inc. 5.7
-------
100.0 %
=======
</TABLE>
56
<PAGE> 61
"Index Price," on a given date, shall mean the weighted
average (weighted in accordance with the factors listed above) of the
closing prices on such date of the common stocks of the companies
comprising the Index Group.
"Initial Index Price" shall mean the sum of each per share
closing price of the common stock of each company comprising the Index
Group multiplied by the applicable weighting, as such prices are
reported on the consolidated transactions reporting system for the
market or exchange on which such common stock is principally traded on
the Starting Date.
"Starting Date" shall mean the last trading day immediately
preceding the date of the first public announcement of entry into this
Agreement.
"Starting Price" shall mean the closing price of a share of
PHFG Common Stock on the Nasdaq Stock Market's National Market (as
reported in The Wall Street Journal, or if not reported therein, in
another authoritative source) on the Starting Date.
If any company belonging to the Index Group declares or effects a
stock dividend, reclassification, recapitalization, split-up, combination,
exchange of shares or similar transaction between the Starting Date and the
Determination Date, the prices for the common stock of such company shall be
appropriately adjusted for the purposes of applying this Section 7.1(h).
7.2 Effect of Termination
In the event that this Agreement is terminated pursuant to Section 7.1
hereof, this Agreement shall become void and have no effect, except that (i)
Sections 5.4(b) and 8.1 hereof and this Section 7.2 shall survive any such
termination and (ii) a termination pursuant to Section 7.1(b), (c), (d) or (e)
shall not relieve the breaching party from liability for willful breach of any
covenant, undertaking, representation or warranty giving rise to such
termination.
7.3 Survival of Representations, Warranties and Covenants
All representations, warranties and covenants in this Agreement or in
any instrument delivered pursuant hereto or thereto shall expire on, and be
terminated and extinguished at, the Effective Time other than covenants that by
their terms are to be performed after the Effective Time (including without
limitation the covenants set forth in Sections 5.8 and 5.9 hereof), provided
that no such representations, warranties or covenants shall be deemed to be
terminated or extinguished so as to deprive PHFG or the Company (or any
director, officer or controlling person thereof) of any defense at law or in
equity which otherwise would be available against the claims of any person,
including, without limitation, any shareholder or former shareholder of either
PHFG or the Company.
57
<PAGE> 62
7.4 Waiver
Each party hereto by written instrument signed by an executive officer
of such party, may at any time (whether before or after approval of this
Agreement by the shareholders of PHFG and the Company) extend the time for the
performance of any of the obligations or other acts of the other party hereto
and may waive (i) any inaccuracies of the other party in the representations or
warranties contained in this Agreement or any document delivered pursuant
hereto, (ii) compliance with any of the covenants, undertakings or agreements
of the other party, (iii) to the extent permitted by law, satisfaction of any
of the conditions precedent to its obligations contained herein or (iv) the
performance by the other party of any of its obligations set forth herein,
provided that any such waiver granted, or any amendment or supplement pursuant
to Section 7.5 hereof executed, after shareholders of PHFG or the Company have
approved this Agreement shall not modify either the amount or the form of the
consideration to be provided hereby to the holders of Company Common Stock upon
consummation of the Merger or otherwise materially adversely affect such
shareholders without the approval of the shareholders who would be so affected.
7.5 Amendment or Supplement
This Agreement may be amended or supplemented at any time by mutual
agreement of the parties hereto, subject to the proviso to Section 7.4 hereof.
Any such amendment or supplement must be in writing and authorized by the
parties' respective Boards of Directors.
ARTICLE VIII
MISCELLANEOUS
8.1 Expenses
Each party hereto shall bear and pay all costs and expenses incurred
by it in connection with the transactions contemplated by this Agreement,
including fees and expenses of its own financial consultants, accountants and
counsel, provided that expenses of printing the Form S-4 and the registration
fee to be paid to the Commission in connection therewith shall be shared
equally between the Company and PHFG, and provided further that nothing
contained herein shall limit either party's rights to recover any liabilities
or damages arising out of the other party's willful breach of any provision of
this Agreement.
8.2 Entire Agreement
This Agreement (including the agreements to be executed and delivered
pursuant hereto) contains the entire agreement among the parties with respect
to the transactions contemplated hereby and supersedes all prior arrangements
or understandings with respect thereto, written or oral, other than documents
referred to herein and therein.
58
<PAGE> 63
8.3 Assignment; Successors
A party hereto may not assign any of its rights or obligations under
this Agreement to any other person without the prior written consent of the
other party or parties. The terms and conditions of this Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
successors. Nothing in this Agreement, expressed or implied, is intended to
confer upon any party, other than the parties hereto, and their respective
successors, any rights, remedies, obligations or liabilities, except as
otherwise expressly provided in Section 5.8 hereof.
8.4 Notices
All notices or other communications which are required or permitted
hereunder shall be in writing and sufficient if delivered personally,
telecopied (with confirmation) or sent by overnight mail service or by
registered or certified mail (return receipt requested), postage prepaid,
addressed as follows:
If to PHFG:
Peoples Heritage Financial Group, Inc.
One Portland Square
Portland, Maine 04112-9540
Attn: William J. Ryan
Chairman, President and Chief Executive Officer
Fax: 207-761-8587
With a required copy to:
Elias, Matz, Tiernan & Herrick L.L.P.
734 15th Street, N.W.
Washington, DC 20005
Attn: Gerard L. Hawkins, Esq.
Fax: 202-347-2172
If to the Company:
CFX Corporation
102 Main Street
Keene, New Hampshire 03431
Attn: Peter J. Baxter
President and Chief Executive Officer
Fax: 603-358-5028
59
<PAGE> 64
With a required copy to:
Arnold & Porter
555 Twelfth Street
Washington, D.C. 20004
Attn: Steven Kaplan, Esq.
Fax: 202-942-5999
8.5 Alternative Structure
Notwithstanding any provision of this Agreement to the contrary, PHFG
may elect, subject to the filing of all necessary applications and the receipt
of all required regulatory approvals, to modify the structure of the
acquisition of the Company set forth herein, provided that (i) the federal
income tax consequences of any transactions created by such modification shall
not be other than those set forth in Sections 6.2(e) and 6.3(e) hereof, (ii)
any such modification will not jeopardize pooling-of-interests accounting
treatment, (iii) the consideration to be paid to the holders of the Company
Common Stock is not thereby changed in kind or reduced in amount as a result of
such modification and (iv) such modification will not materially delay or
jeopardize receipt of any required regulatory approvals or any other condition
to the obligations of PHFG set forth in Sections 6.1 and 6.3 hereof.
8.6 Interpretation
The table of contents and headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. The phrases "the date of this Agreement,"
"the date hereof" and terms of similar import herein, unless the context
otherwise requires, shall be deemed to be the date first above written.
8.7 Counterparts
This Agreement may be executed in any number of counterparts, and each
such counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
8.8 Governing Law
This Agreement shall be governed by and construed in accordance with
the laws of the State of Maine applicable to agreements made and entirely to be
performed within such jurisdiction.
60
<PAGE> 65
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed in counterparts by their duly authorized officers as of the day and
year first above written.
PEOPLES HERITAGE FINANCIAL
Attest: GROUP, INC.
/s/ Carol L. Mitchell By: /s/ William J. Ryan
- ---------------------------------------- -------------------------------
Name: Carol L. Mitchell Name: William J. Ryan
Title: Executive Vice President, General Title: Chairman, President and
Counsel, Secretary and Chief Executive Officer
Treasurer
CFX CORPORATION
Attest:
/s/ E.L. Herbert By: /s/ Peter J. Baxter
- ---------------------------------------- -------------------------------
Name: E.L. Herbert Name: Peter J. Baxter
Title: Assistant Secretary Title: President and Chief
Executive Officer
61
<PAGE> 66
EXHIBIT A
AMENDED AND RESTATED ARTICLES OF INCORPORATION OF
PEOPLES HERITAGE FINANCIAL GROUP, INC.
ARTICLE 1
NAME AND LOCATION
The name of the corporation is Peoples Heritage Financial Group, Inc.
(hereinafter referred to as the "Corporation") and it is located at One
Portland Square, Portland, Maine 04112-9540.
ARTICLE 2
CLERK; REGISTERED OFFICE
The name of the Corporation's Clerk is Carol L. Mitchell, and the
address of the Corporation's registered office is P.O. Box 9540, One Portland
Square, Portland, Maine 04112-9540.
ARTICLE 3
NATURE OF BUSINESS
The purpose of the Corporation is to act as a financial institution
holding company and to engage in any lawful act or activity for which a
corporation may be organized under the Maine Business Corporation Act. The
Corporation shall have all the powers of a corporation organized under said Act
and under the Maine statutes relating to financial institution holding
companies.
ARTICLE 4
CAPITAL STOCK
The total number of shares of capital stock which the Corporation has
authority to issue is 105,000,000, of which 5,000,000 shall be serial preferred
stock, $.01 par value per share (hereinafter the "Preferred Stock"), and
100,000,000 shall be common stock, par value $.01 per share (hereinafter the
"Common Stock"). The aggregate par value of all authorized shares of capital
stock having a par value is $1,050,000. Except to the extent required by
governing law, rule or regulation, the shares of capital stock may be issued
from time to time by the Board of Directors without further approval of
stockholders. The Corporation shall have the authority to purchase its capital
stock out of funds lawfully available therefor, which funds shall include,
without limitation, the Corporation's unreserved and unrestricted capital
surplus.
<PAGE> 67
A description of the different classes and series (if any) of the
Corporation's capital stock and a statement of the designations, and the
relative rights, preferences and limitations of the shares of each class of and
series (if any) of capital stock are as follows:
A. Common Stock. Except as provided in this Article 4 (or in any
resolution or resolutions adopted by the Board of Directors pursuant hereto),
the exclusive voting power shall be vested in the Common Stock, the holders
thereof being entitled to one vote for each share of such Common Stock standing
in the holder's name on the books of the Corporation. Subject to any rights
and preferences of any class or series of stock having preference over the
Common Stock, holders of Common Stock shall be entitled to such dividends as
may be declared by the Board of Directors out of funds lawfully available
therefor, which funds shall include, without limitation, the Corporation's
capital surplus. Upon any liquidation, dissolution or winding up of the
affairs of the Corporation, whether voluntary or involuntary, holders of Common
Stock shall be entitled to receive pro rata the remaining assets of the
Corporation after the holders of any class or series of stock having preference
over the Common Stock have been paid in full any sums which they may be
entitled.
B. Preferred Stock. The Board of Directors is hereby expressly
authorized by resolution or resolutions to provide, out of the unissued shares
of Preferred Stock, for series of Preferred Stock. Before any shares of any
such series are issued, the Board of Directors shall fix, and hereby is
expressly empowered to fix, by resolution or resolutions, the following
provisions of the shares thereof:
(a) the designation of such series and the number of shares to
constitute such series, which number may be increased or decreased
(but not below the number of shares then outstanding) from time to
time by the Board of Directors;
(b) whether the shares of such series shall have voting
rights, and, if so, the terms of such voting rights, which may be
general or limited;
(c) the dividends, if any, payable on such series, whether any
such dividends shall be cumulative, and, if so, from what dates, the
conditions and dates upon which such dividends shall be payable, and
the preference or relation which such dividends shall bear to the
dividends payable on any shares of stock of any other class or any
other series of this class;
(d) whether the shares of such series shall be subject to
redemption by the Corporation, and, if so, the times, prices and other
conditions of such redemption;
(e) the amount or amounts payable upon shares of such series
upon, and the rights of the holders of such series in, the voluntary
or involuntary liquidation, dissolution or winding up, or upon any
distribution of the assets, of the Corporation;
2
<PAGE> 68
(f) whether the shares of such series shall be subject to the
operation of a retirement or sinking fund, and, if so, the extent to
and manner in which any such retirement or sinking fund shall be
applied to the purchase or redemption of the shares of such series for
retirement or other corporate purposes and the terms and provisions
relative to the operation thereof;
(g) whether the shares of such series shall be convertible
into, or exchangeable for, shares of stock of any other class or any
other series of this class or any other securities, and, if so, the
price or prices or the rate or rates of conversion or exchange and the
method, if any, of adjusting the same, and any other terms and
conditions of conversion or exchange;
(h) any other powers, preferences and relative, participating,
optional and other special rights, and any qualifications, limitations
and restrictions thereof.
The powers, preferences and relative, participating, optional and
other special rights of each series of Preferred Stock, and the qualifications,
limitations or restrictions thereof, if any, may differ from those of any and
all other series at any time outstanding. All shares of any one series of
Preferred Stock shall be identical in all respects with all other shares of
such series, except that shares of any one series issued at different times may
differ as to the dates from which dividends thereon shall accrue and/or be
cumulative and as otherwise provided by applicable law.
ARTICLE 5
PREEMPTIVE RIGHTS
No holder of the capital stock of the Corporation shall be entitled as
such, as a matter of right, to subscribe for or purchase any part of any new or
additional issue of stock of any class whatsoever of the Corporation, or of
securities convertible into stock of any class whatsoever, whether now or
hereafter authorized, or whether issued for cash or other consideration or by
way of a dividend.
ARTICLE 6
CONVERTIBLE DEBT SECURITIES
The Corporation may issue bonds, debentures, notes or other evidences
of indebtedness which may be convertible into other bonds, debentures, notes or
other evidences of indebtedness of the Corporation or into shares of stock of
any class of the Corporation within such period and upon such terms and
conditions as shall be fixed by the Board of Directors.
3
<PAGE> 69
ARTICLE 7
DIRECTORS
The Corporation shall be managed by or under the direction of a Board
of Directors. The number of directors of the Corporation that shall constitute
the initial Board of Directors shall be six. The Board of Directors may
increase or decrease the number of directors by resolution, and the
stockholders may increase or decrease the number of directors by the
affirmative vote of at least 67% of the shares entitled to vote generally in an
election of directors, voting as a single class, provided in each case that the
minimum number of directors shall be three and the maximum number of directors
shall be 25, and further provided that no decrease in the number of directors
shall have the effect of shortening the term of any incumbent director.
A. Classification and Term. The Board of Directors shall be
divided into three classes as nearly equal in number as the then total number
of directors constituting the Board of Directors permits, with the term of
office of one class expiring each year. At the first annual meeting of
stockholders following the effective date of these Articles of Incorporation,
directors of the first class shall be elected to hold office for a term
expiring at the next succeeding annual meeting, directors of the second class
shall be elected to hold office for a term expiring at the second succeeding
annual meeting, and directors of the third class shall be elected to hold
office for a term expiring at the third succeeding annual meeting, and, with
respect to directors of each class, until their respective successors are
elected and qualified. At each subsequent annual meeting of stockholders,
directors selected to succeed those whose terms are expiring shall be elected
for a term of office to expire at the third succeeding annual meeting of
stockholders and when their respective successors are elected and qualified.
Stockholders of the Corporation shall not be permitted to cumulate their votes
for the election of directors.
B. Removal. At a duly constituted meeting of stockholders called
expressly for the purpose, any director may be removed with or without cause by
a vote of the holders of at least 67% of the shares then entitled to vote in an
election of directors, voting as a single class, provided, however, that any
director also may be removed for cause in the manner specified in the Maine
Business Corporation Act.
C. Vacancies. Any vacancies occurring in the Board of Directors
by reason of an increase in the number of directors may be filled by the Board
of Directors, and any directors so chosen shall hold office until the next
election of directors by the stockholders. Any other vacancy in the Board of
Directors, whether by reason of death, resignation, removal or otherwise, may
be filled by the remaining directors, or by a sole remaining director, and any
directors so chosen shall hold office until their successors shall be elected
and qualified. Notwithstanding the foregoing, and except as otherwise required
by law, whenever the holders of any one or more series of Preferred Stock shall
have the right, voting separately as a class, to elect one or more directors of
the Corporation, the terms of
4
<PAGE> 70
the director or directors elected by such holders shall expire at the next
succeeding annual meeting of stockholders and vacancies created with respect to
any directorship of the directors so elected may be filled in the manner
specified by the resolution or resolutions of the Board of Directors
establishing such Preferred Stock.
D. Discharge of Duties. In discharging the duties of their
respective positions, the Board of Directors, committees of the Board and
individual directors shall, in considering the best interests of the
Corporation, consider the effects of any action upon the employees of the
Corporation and its subsidiaries, the depositors and borrowers of any banking
subsidiary, the communities in which offices or other establishments of the
Corporation or any subsidiary are located and all other pertinent factors.
ARTICLE 8
SPECIAL MEETINGS, INFORMAL ACTION BY STOCKHOLDERS AND BYLAWS
A. Location. Meetings of stockholders shall be held at such
place within or without the State of Maine as may from time to time be fixed by
the Board of Directors.
B. Special Meetings. Special meetings of the stockholders, for
any purpose or purposes, may be called at any time by the Chairman of the
Board, the President or a majority of the Board of Directors and shall be
called by the Chairman of the Board, the President or the Clerk upon the
written request of the holders of not less than 50% of the issued and
outstanding capital stock of the Corporation entitled to vote on the matter for
which the meeting is called, voting together as a single class; provided,
however, that special meetings of stockholders also may be called in the manner
specified in the Maine Business Corporation Act. The written request specified
above shall state the purpose or purposes of the meeting and shall be delivered
at the principal office of the Corporation addressed to the Chairman of the
Board, the President or the Clerk.
C. Informal Action. Any action required to be taken at a meeting
of the stockholders, or any other action which may be taken at a meeting of the
stockholders, may be taken without a meeting if consent in writing, setting
forth the action so taken, shall be given by all of the stockholders entitled
to vote with respect to the subject matter thereof and filed with the Clerk of
the Corporation as part of the corporate records.
D. Bylaws. The Board of Directors shall have the exclusive power
to make, alter, amend and repeal the Bylaws.
5
<PAGE> 71
ARTICLE 9
CERTAIN BUSINESS COMBINATIONS AND ACQUISITIONS OF STOCK
9.1 Definitions.
(a) Affiliate. An "Affiliate" of, or a Person "affiliated with,"
a specified Person, means a Person that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common control
with, the Person specified.
(b) Associate. The term "Associate" used to indicate a
relationship with any Person means:
(i) Any corporation or organization (other than the
Corporation or a Subsidiary of the Corporation), or any subsidiary or
parent thereof, of which such Person is an officer or partner or is,
directly or indirectly, the Beneficial Owner of 10% or more of any
class of equity securities;
(ii) Any trust or other estate in which such Person has a 10%
or greater beneficial interest or as to which such Person serves as
trustee or in a similar fiduciary capacity;
(iii) Any relative or spouse of such Person, or any relative
of such spouse who has the same home as such Person; or
(iv) Any investment company registered under the Investment
Company Act of 1940 for which such Person or any Affiliate or
Associate of such Person serves as investment advisor.
(b) Beneficial Owner. A Person shall be considered the
"Beneficial Owner" of any shares of stock (whether or not owned of record):
(i) With respect to which such Person or any Affiliate or
Associate of such Person directly or indirectly has or shares (A)
voting power, including the power to vote or to direct the voting of
such shares of stock and/or (B) investment power, including the power
to dispose of or to direct the disposition of such shares of stock;
(ii) Which such Person or any Affiliate or Associate of such
Person has (A) the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise,
and/or (B) the right to vote pursuant to any
6
<PAGE> 72
agreement, arrangement or understanding (whether such right is
exercisable immediately or only after the passage of time); or
(iii) Which are Beneficially Owned within the meaning of (i)
or (ii) of this Article 9.1(c) by any other Person with which such
first-mentioned Person or any of its Affiliates or Associates has any
agreement, arrangement or understanding, written or oral, with respect
to acquiring, holding, voting or disposing of any shares of stock of
the Corporation or any Subsidiary of the Corporation or acquiring,
holding or disposing of all or substantially all, or any Substantial
Part, of the assets or business of the Corporation or a Subsidiary of
the Corporation.
For the purpose of determining whether a Person is the Beneficial Owner of a
percentage specified in this Article 9 of the outstanding Voting Shares, such
shares shall be deemed to include any Voting Shares which may be issuable
pursuant to any agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants, options or otherwise and which
are deemed to be Beneficially Owned by such Person pursuant to the foregoing
provisions of this Article 9.1(c), but shall not include any other Voting
Shares which may be issuable in such manner.
(d) Business Combination. A "Business Combination" means:
(i) The sale, exchange, lease, transfer or other disposition
to or with a Related Person or any Affiliate or Associate of such
Related Person by the Corporation or any of its Subsidiaries (in a
single transaction or a series of related transactions) of all or
substantially all, or any Substantial Part, of its or their assets or
businesses (including, without limitation, any securities issued by a
Subsidiary);
(ii) The purchase, exchange, lease or other acquisition by the
Corporation or any of its Subsidiaries (in a single transaction or a
series of related transactions) of all or substantially all, or any
Substantial Part, of the assets or business of a Related Person or any
Affiliate or Associate of such Related Person;
(iii) Any merger or consolidation of the Corporation or any
Subsidiary thereof into or with a Related Person or any Affiliate or
Associate of such Related Person or into or with another Person which,
after such merger or consolidation, would be an Affiliate or an
Associate of a Related Person, in each case irrespective of which
Person is the surviving entity in such merger or consolidation;
(iv) Any reclassification of securities, recapitalization or
other transaction (other than a redemption in accordance with the
terms of the
7
<PAGE> 73
security redeemed) which has the effect, directly or indirectly, of
increasing the proportionate amount of Voting Shares of the
Corporation or any Subsidiary thereof which are Beneficially Owned by
a Related Person, or any partial or complete liquidation, spinoff,
splitoff or splitup of the Corporation or any Subsidiary thereof;
provided, however, that this Article 9.1(d) shall not relate to any
transaction of the types specified herein that has been approved by
the affirmative vote of at least two thirds of the Whole Board of
Directors and a majority of the Continuing Directors; or
(v) The acquisition upon the issuance thereof of Beneficial
Ownership by a Related Person of Voting Shares or securities
convertible into Voting Shares or any voting securities or securities
convertible into voting securities of any Subsidiary of the
Corporation, or the acquisition upon the issuance thereof of
Beneficial Ownership by a Related Person of any rights, warrants or
options to acquire any of the foregoing or any combination of the
foregoing Voting Shares or voting securities of a Subsidiary.
As used in this definition, a "series of related transactions" shall be deemed
to include not only a series of transactions with the same Related Person, but
also a series of separate transactions with a Related Person or any Affiliate
or Associate of such Related Person.
Anything in this definition to the contrary notwithstanding, this
definition shall not be deemed to include any transaction of the type set forth
in Articles 9.1(d)(i) through 9.1(d)(iii) above, between or among any two or
more Subsidiaries of the Corporation or the Corporation and one or more
Subsidiaries of the Corporation if such transaction has been approved by the
affirmative vote of at least two thirds of the Whole Board of Directors and a
majority of the Continuing Directors.
(e) Continuing Directors. A "Continuing Director" shall mean:
(i) an individual who is unaffiliated with a Related Person
and who was a member of the Board of Directors prior to the time that
a Related Person acquired 10% or more of the Voting Shares, or
(ii) an individual who is unaffiliated with a Related Person
and who is designated before his or her initial election as a
Continuing Director by a majority of the Continuing Directors.
(f) Independent Majority of Stockholders. "Independent Majority
of Stockholders" shall mean the holders of a majority of the outstanding Voting
Shares that are not Beneficially Owned, directly or indirectly, by a Related
Person.
(g) Offer. The term "Offer" shall mean every offer to buy or
acquire, solicitation of an offer to sell, tender offer or request or
invitation for tender of, a security or interest
8
<PAGE> 74
in a security for value; provided that the term "Offer" shall not include (i)
inquiries directed solely to the management of the Corporation and not intended
to be communicated to stockholders which are designed to elicit an indication
of management's receptivity to the basic structure of a potential acquisition
with respect to the amount of cash and/or securities, manner of acquisition and
formula for determining price, or (ii) non-binding expressions of understanding
or letters of intent with the management of the Corporation regarding the basic
structure of a potential acquisition with respect to the amount of cash and/or
securities, manner of acquisition and formula for determining price.
(h) Person. The term "Person" shall mean any person, partnership,
corporation, group or other entity. When two or more Persons act as a
partnership, limited partnership, syndicate, association or other group for the
purpose of acquiring, holding or disposing of shares of stock, such
partnership, syndicate, associate or group shall be deemed a "Person."
(i) Related Person. The term "Related Person" shall mean any
Person who or which is (i) the Beneficial Owner of 10% or more of the Voting
Shares; or (ii) an Affiliate of the Corporation and at any time within the
two-year period immediately prior to the announcement of a Business Combination
was the Beneficial Owner, directly or indirectly, of 10% or more of the then
outstanding Voting Shares; or (iii) an assignee of or has otherwise succeeded
to any Voting Shares which were at any time within the two-year period
immediately prior to the announcement of a Business Combination Beneficially
Owned by any Related Person, if such assignment or succession shall have
occurred in the course of a transaction or series of transactions not involving
a public offering within the meaning of the Securities Act of 1933.
(j) Substantial Part. The term "Substantial Part" as used with
reference to the assets of the Corporation, of any Subsidiary or of any Related
Person means assets having a value of more than 10% of the total consolidated
assets of the Corporation and its Subsidiaries as of the end of the
Corporation's most recent fiscal year ending prior to the time the
determination is being made.
(k) Subsidiary. "Subsidiary" means any corporation of which a
majority of any class of equity security is owned, directly or indirectly, by
the Person in question.
(l) Voting Shares. "Voting Shares" shall mean shares of the
Corporation entitled to vote generally in an election of directors.
(m) Whole Board of Directors. "Whole Board of Directors" shall
mean the total number of directors which the Corporation would have if there
were no vacancies.
(n) Certain Determinations With Respect to Section 9.
(i) A majority of the Continuing Directors shall have the
power to determine for the purposes of this Article 9, on the basis of
information
9
<PAGE> 75
known to them: (A) the number of Voting Shares of which any Person is
the Beneficial Owner, (B) whether a Person is an Affiliate or
Associate of another, (C) whether a Person has an agreement,
arrangement or understanding with another as to the matters referred
to in the definition of "Beneficial Owner" as hereinabove defined, (D)
whether the assets subject to any Business Combination constitute a
"Substantial Part" as hereinabove defined, (E) whether two or more
transactions constitute a "series of related transactions" as
hereinabove defined, (F) any matters referred to in Article 9.1(n)(ii)
below, and (G) such other matters with respect to which a
determination is required under this Article 9.
(ii) A Related Person shall be deemed to have acquired a share
of the Corporation at the time when such Related Person became the
Beneficial Owner thereof. With respect to shares owned by Affiliates,
Associates or other Persons whose ownership is attributed to a Related
Person under the foregoing definition of Beneficial Owner, if the
price paid by such Related Person for such shares is not determinable,
the price so paid shall be deemed to be the higher of (A) the price
paid upon acquisition thereof by the Affiliate, Associate or other
Person, or (B) the market price of the shares in question (as
determined by a majority of the Continuing Directors) at the time when
the Related Person became the Beneficial Owner thereof.
(o) Fiduciary Obligations. Nothing contained in this Article 9
shall be construed to relieve any Related Person from any fiduciary obligation
imposed by law.
(p) Directors, Officers or Employees. Directors, officers or
employees of the Corporation or any Subsidiary thereof shall not be deemed to
be a Person or Associates with respect to their individual acquisitions of any
class of equity securities of the Corporation solely as a result of their
capacities as such.
9.2 Approval of Business Combinations.
(a) Whether or not a vote of the stockholders is otherwise
required in connection with the transaction, neither the Corporation nor any of
its Subsidiaries shall become party to any Business Combination without the
prior affirmative vote at a meeting of the Corporation's stockholders as to all
shares owned by (i) the holders of not less than 80% of the outstanding Voting
Shares, voting as a single class, and (ii) an Independent Majority of
Stockholders. Such favorable votes shall be required notwithstanding that no
vote may be required, or that some lesser percentage may be specified by law or
elsewhere in these Articles of Incorporation or the Bylaws of the Corporation
or otherwise.
(b) The provisions of Article 9.2(a) shall not apply to a
particular Business Combination, and such Business Combination shall require
only such stockholder vote (if any) as would be required without reference to
Article 9.2(a), if the conditions specified in
10
<PAGE> 76
Article 9.2(c) are met or all of the conditions set forth in Subparagraphs (i)
through (vii) below are satisfied:
(i) The ratio of (A) the aggregate amount of the cash and
the fair market value of other consideration to be received per share
of Common Stock (as defined in Article 4 hereof) of the Corporation in
such Business Combination by holders of Common Stock other than the
Related Person involved in such Business Combination, to (B) the
market price per share of the Common Stock immediately prior to the
announcement of the proposed Business Combination, is at least as
great as the ratio of (X) the highest per share price (including
brokerage commissions, transfer taxes and soliciting dealers' fees)
which such Related Person has theretofore paid in acquiring any Common
Stock prior to such Business Combination, to (Y) the market price per
share of Common Stock immediately prior to the initial acquisition by
such Related Person of any shares of Common Stock; and
(ii) The aggregate amount of the cash and the fair market
value of other consideration to be received per share of Common Stock
in such Business Combination by holders of Common Stock, other than
the Related Person involved in such Business Combination, is not less
than the highest per share price (including brokerage commissions,
transfer taxes and soliciting dealers' fees) paid by such Related
Person in acquiring any of its holdings of Common Stock; and
(iii) If applicable, the ratio of (A) the aggregate amount
of the cash and the fair market value of other consideration to be
received per share of Preferred Stock (as defined in Article 4 hereof)
of the Corporation in such Business Combination by holders of
Preferred Stock other than the Related Person involved in such
Business Combination, to (B) the market price per share of the
Preferred Stock immediately prior to the announcement of the proposed
Business Combination, is at least as great as the ratio of (X) the
highest per share price (including brokerage commissions, transfer
taxes and soliciting dealers' fees) which such Related Person has
theretofore paid in acquiring any Preferred Stock prior to such
Business Combination to (Y) the market price per share of Preferred
Stock immediately prior to the initial acquisition by such Related
Person of any shares of Preferred Stock; and
(iv) If applicable, the aggregate amount of the cash and
the fair market value of other consideration to be received per share
of Preferred Stock in such Business Combination by holders of
Preferred Stock, other than the Related Person involved in such
Business Combination, is not less than the highest per share price
(including brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by such Related Person in acquiring any of its
holdings of Preferred Stock; and
11
<PAGE> 77
(v) The consideration (if any) to be received in such
Business Combination by holders of stock other than the Related Person
(whether Common Stock or Preferred Stock) shall, except to the extent
that a stockholder agrees otherwise as to all or part of the shares
which he or she owns, be in the same form and of the same kind as the
consideration paid by the Related Person in acquiring stock already
owned by it; and
(vi) After such Related Person becomes a Related Person
and prior to the consummation of such Business Combination:
(A) such Related Person shall have taken steps to
ensure that the Board of Directors of the Corporation included
at all times representation by Continuing Directors
proportionate to the ratio that the number of Voting Shares of
the Corporation from time to time owned by stockholders who
are not Related Persons bears to all Voting Shares of the
Corporation outstanding at the time in question (with a
Continuing Director to occupy any resulting fractional
position among the directors);
(B) such Related Person shall not have acquired
from the Corporation, directly or indirectly, any shares of
the Corporation (except (X) upon conversion of convertible
securities acquired by it prior to becoming a Related Person,
(Y) as a result of a pro rata stock dividend, stock split or
division of shares or (Z) in a transaction which satisfied all
applicable requirements of this Article 9);
(C) such Related Person shall not have acquired
any additional Voting Shares of the Corporation or securities
convertible into or exchangeable for Voting Shares except as a
part of the transaction which resulted in such Related
Person's becoming a Related Person;
(D) such Related Person shall not have (X)
received the benefit, directly or indirectly (except
proportionately as a stockholder), of any loans, advances,
guarantees, pledges or other financial assistance or tax
credits provided by the Corporation or any Subsidiary, or (Y)
made any change in the Corporation's business or equity
capital structure or entered into any contract, arrangement or
understanding with the Corporation, except any such change,
contract, arrangement or understanding as may have been
approved by the favorable vote of not less than a majority of
the Whole Board of Directors and a majority of the Continuing
Directors of the Corporation; and
12
<PAGE> 78
(E) except as provided by a majority of the Whole
Board of Directors and a majority of the Continuing Directors,
there shall have been: (X) no failure to declare and pay at
the regular date therefor any dividends (whether or not
cumulative) on any outstanding Preferred Stock; (Y) no
reduction in the annual rate of dividends paid on the Common
Stock (except as necessary to reflect any subdivision of the
Common Stock); and (Z) an increase in such annual rate of
dividends as necessary to reflect any reclassification
(including any reverse stock split), recapitalization,
reorganization or any similar transaction which has the effect
of reducing the number of outstanding shares of the stock; and
(vii) A proxy statement complying with the requirements of the
Securities Exchange Act of 1934, as amended, shall have been mailed to
all holders of Voting Shares for the purpose of soliciting stockholder
approval at least 20 days prior to the consummation of such Business
Combination (whether or not such proxy statement is required to be
mailed pursuant to such Act or any successor provisions). Such proxy
statement shall contain at the front thereof, in a prominent place,
any recommendations as to the advisability (or inadvisability) of the
Business Combination which the Continuing Directors, or any of them,
may have furnished in writing and, if deemed advisable by a majority
of the Continuing Directors, an opinion of a reputable investment
banking firm as to the fairness (or lack of fairness) of the terms of
such Business Combination from the point of view of the holders of
Voting Shares other than any Related Person (such investment banking
firm to be selected by a majority of the Continuing Directors, to be
furnished with all information it reasonably requests, and to be paid
a reasonable fee for its services upon receipt by the Corporation of
such opinion).
(c) The provisions of Article 9.2(a) shall not apply to a
particular Business Combination, and such Business Combination shall require
only such stockholder vote, if any, as would be required without reference to
Article 9.2(a), if such Business Combination is approved by (i) two thirds of
the Whole Board of Directors of the Corporation at a time prior to the
acquisition of 10% or more of the outstanding Voting Shares of the Corporation
by the Related Person, or (ii) a majority of the Continuing Directors after
acquisition of 10% or more of the outstanding Voting Shares by the Related
Person but before consummation of the particular Business Combination.
(d) Any amendment, change or repeal of Article 9.2(a) through (d)
or any other amendment of these Articles of Incorporation which would have the
effect of modifying or permitting circumvention of Article 9.2(a) through (d)
shall require the affirmative vote at a meeting of the Corporation's
stockholders as to all shares owned by (i) the holders of at least 80% of the
then outstanding Voting Shares, voting as a single class, and (ii) an
Independent Majority of Stockholders; provided, however, that this Article
9.2(d) shall not apply to, and such vote shall not be required for, any such
amendment, change or repeal
13
<PAGE> 79
which is approved by the favorable vote of not less than a majority of the
Whole Board of Directors and a majority of the Continuing Directors, and any
such amendment, change or repeal so approved shall require only the vote, if
any, required by law or elsewhere in these Amended and Restated Articles of
Incorporation or the Bylaws of the Corporation or otherwise.
ARTICLE 10
AMENDMENT
The Corporation reserves the right to amend, alter, change or repeal
any provisions contained in these Amended and Restated Articles of
Incorporation, in the manner now or hereafter prescribed by law, and all rights
conferred upon stockholders herein are granted subject to this reservation. No
amendment, alteration, change or repeal of these Amended and Restated Articles
of Incorporation shall be made unless it is first approved by the Board of
Directors of the Corporation pursuant to a resolution adopted by the
affirmative vote of a majority of the directors then in office, and thereafter
is approved by the holders of a majority of the shares of the Corporation
entitled to vote generally in an election of directors, voting together as a
single class, as well as such additional vote of the Preferred Stock as may be
required by the provisions of any series thereof, provided that,
notwithstanding anything contained in these Amended and Restated Articles of
Incorporation to the contrary, (i) the affirmative vote of the holders of at
least 75% of the shares of the Corporation entitled to vote generally in an
election of directors, voting together as a single class, as well as such
additional vote of the Preferred Stock as may be required by the provision of
any series thereof, shall be required to amend, alter, change or repeal any
provision inconsistent with Articles 5, 6, 7, 8 and this Article 10, provided,
however, that such supermajority vote shall not apply to, and such vote shall
not be required for, any amendment, addition, alteration, change or repeal
which is approved by the affirmative vote of at least two thirds of the Whole
Board of Directors and a majority of the Continuing Directors (in each case as
defined in Article 9 hereof), and any such amendment, addition, alteration,
change or repeal so approved shall require only the vote, if any, required by
law or elsewhere in these Articles of Incorporation or the Bylaws of the
Corporation or otherwise, and (ii) Article 9.1 and 9.2 shall be amended in the
manner specified in Article 9.2(d).
14
<PAGE> 80
EXHIBIT B
[MATTERS TO BE COVERED IN OPINION(S) OF COUNSEL TO BE DELIVERED TO THE COMPANY
PURSUANT TO SECTION 6.2(d) OF THE AGREEMENT]
(a) Each of PHFG and its Significant Subsidiaries is duly
incorporated and validly existing under the laws of the jurisdiction of its
incorporation, and PHFG is duly registered as a bank holding company under the
BHCA.
(b) The authorized capital stock of the Acquiror consists of
100,000,000 shares of PHFG Common Stock, of which ___________ were issued and
outstanding of record as of [the end of the month preceding the closing date],
and 5,000,000 shares of PHFG Preferred Stock, none of which are issued and
outstanding as of the date hereof. All of the outstanding shares of PHFG
Common Stock have been duly authorized and validly issued and are fully paid
and nonassessable and the shareholders of PHFG have no preemptive rights with
respect to any shares of capital stock of PHFG. All of the outstanding shares
of capital stock of the PHFG Subsidiaries which are Significant Subsidiaries
have been duly authorized and validly issued, are fully paid and nonassessable
and, to the knowledge of such counsel, and except in the case of the PHFG
Capital Securities, are directly or indirectly owned by PHFG free and clear of
all liens, claims, encumbrances, charges, restrictions or rights of third
parties of any kind whatsoever.
(c) The Agreement has been duly authorized, executed and delivered
by PHFG and, assuming due authorization, execution and delivery by the Company,
constitutes a valid and binding obligation of PHFG enforceable in accordance
with its terms, except that the enforceability of the obligations of PHFG may
be limited by (i) bankruptcy, insolvency, moratorium, reorganization or similar
laws affecting the rights of creditors, (ii) equitable principles limiting the
right to obtain specific performance or other similar equitable relief and
(iii) considerations of public policy, and except that certain remedies may not
be available in the case of a nonmaterial breach of the Agreement.
(d) Each Bank Merger Agreement has been duly authorized, executed
and delivered by the applicable PHFG Bank and, assuming due authorization,
execution and delivery by the applicable Company Bank, constitutes a valid and
binding obligation of the applicable PHFG Bank enforceable in accordance with
its terms, except that enforceability of the obligations of the applicable PHFG
Bank may be limited by (i) bankruptcy, insolvency, moratorium, reorganization
or similar laws affecting the rights of creditors, (ii) equitable principles
limiting the right to obtain specific performance or other similar equitable
relief and (iii) considerations of public policy, and except that certain
remedies may not be available in the case of a nonmaterial breach of the
applicable Bank Merger Agreement.
(e) All corporate and shareholder actions required to be taken by
PHFG by law and its Articles of Incorporation and Bylaws to authorize the
execution and delivery of the Agreement and consummation of the Merger have
been taken, and all corporate and
<PAGE> 81
shareholder actions required to be taken by the applicable PHFG Bank by law and
its Articles of Incorporation and Bylaws to authorize the execution and
delivery of the applicable Bank Merger Agreement and consummation of the
applicable Bank Merger have been taken.
(f) All consents or approvals of or filings or registrations with
any Governmental Entity or, to such counsel's knowledge, any third party which
are necessary to be obtained by (i) PHFG to permit the execution, delivery and
performance of the Agreement and consummation of the Merger have been obtained
and (ii) a PHFG Bank to permit the execution, delivery and performance of the
applicable Bank Merger Agreement and consummation of the applicable Bank Merger
have been obtained.
(g) The shares of PHFG Common Stock to be issued pursuant to the
terms of the Agreement have been duly authorized by all necessary corporate
action on the part of PHFG and, when issued in accordance with the terms of the
Agreement, will be validly issued and fully paid and nonassessable.
(h) To such counsel's knowledge, and except as Previously
Disclosed or as disclosed in PHFG's Securities Documents, there are no material
legal or governmental proceedings pending to which PHFG or a PHFG Subsidiary is
a party or to which any property of PHFG or a PHFG Subsidiary is subject and no
such proceedings are threatened by governmental authorities or by others.
Such counsel also shall state that nothing has caused it to believe
that the information relating to PHFG and the PHFG Subsidiaries contained or
incorporated by reference in (i) the Form S-4, at the time the Form S-4 and any
amendment thereto became effective under the Securities Act, contained any
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and (ii) the Proxy Statement, as of the
date(s) such Proxy Statement was mailed to shareholders of the Company and
PHFG and up to and including the date(s) of the meetings of shareholders to
which such Proxy Statement relates, contained any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
In rendering their opinion, such counsel may rely, to the extent such
counsel deems such reliance necessary or appropriate, upon (i) certificates of
governmental officials and, as to matters of fact, certificates of officers of
PHFG or a PHFG Subsidiary and (ii) in the case of Elias, Matz, Tiernan &
Herrick L.L.P., Carol L. Mitchell, Esq. or such other Maine counsel reasonably
satisfactory to the Company with respect to matters of Maine law. The opinion
of such counsel may add other qualifications and explanations of the basis of
their opinion as may be reasonably acceptable to the Company.
2
<PAGE> 82
EXHIBIT C
[MATTERS TO BE COVERED IN OPINION OF COUNSEL TO BE DELIVERED TO PHFG PURSUANT
TO SECTION 6.3(d) OF THE AGREEMENT]
(a) Each of the Company and the Company Banks is duly incorporated
and validly existing under the laws of the jurisdiction of its incorporation,
and the Company is duly registered as a bank holding company under the BHCA.
(b) The authorized capital stock of the Company consists of
50,000,000 shares of Company Common Stock, of which _______ shares are issued
and outstanding of record as of the date hereof, and 3,000,000 shares of
Company Preferred Stock, of which no shares are issued or outstanding. All of
the outstanding shares of Company Common Stock have been duly authorized and
validly issued and are fully paid and nonassessable and the shareholders of the
Company have no preemptive rights with respect to any shares of capital stock
of the Company. All of the outstanding shares of capital stock of each Company
Bank have been duly authorized and validly issued, are fully paid and
nonassessable (except as otherwise provided by the National Bank Act with
respect to the Company Massachusetts Bank which is a national bank) and, to the
knowledge of such counsel, are directly or indirectly owned by the Company free
and clear of all liens, claims, encumbrances, charges, restrictions or rights
of third parties of any kind whatsoever. To such counsel's knowledge, except
for the Company Stock Option Agreement, there are no Rights authorized, issued
or outstanding with respect to the capital stock of the Company or a Company
Subsidiary.
(c) The Agreement has been duly authorized, executed and delivered
by the Company and, assuming due authorization, execution and delivery by PHFG,
constitutes a valid and binding obligation of the Company enforceable in
accordance with its terms, except that the enforceability of the obligations of
the Company may be limited by (i) bankruptcy, insolvency, moratorium,
reorganization or similar laws affecting the rights of creditors, (ii)
equitable principles limiting the right to obtain specific performance or other
similar equitable relief and (iii) considerations of public policy, and except
that certain remedies may not be available in the case of a nonmaterial breach
of the Agreement.
(d) Each Bank Merger Agreement has been duly authorized, executed
and delivered by the applicable Company Bank and, assuming due authorization,
execution and delivery by the applicable PHFG Bank, constitutes a valid and
binding obligation of the applicable Company Bank enforceable in accordance
with its terms, except that enforceability of the obligations of the applicable
Company Bank may be limited by (i) bankruptcy, insolvency, moratorium,
reorganization or similar laws affecting the rights of creditors, (ii)
equitable principles limiting the right to obtain specific performance or other
similar equitable relief and (iii) considerations of public policy, and except
that certain remedies may not be available in the case of a nonmaterial breach
of the applicable Bank Merger Agreement.
<PAGE> 83
(e) All corporate and shareholder actions required to be taken by
the Company by law and its Articles of Incorporation and Bylaws to authorize
the execution and delivery of the Agreement and consummation of the Merger have
been taken, and all corporate and shareholder actions required to be taken by
the applicable Company Bank by law and its Articles of Incorporation and Bylaws
to authorize the execution and delivery of the applicable Bank Merger Agreement
and consummation of the applicable Bank Merger have been taken.
(f) All consents or approvals of or filings or registrations with
any Governmental Entity or, to such counsel's knowledge, any third party which
are necessary to be obtained by (i) the Company to permit the execution,
delivery and performance of the Agreement and consummation of the Merger have
been obtained and (ii) a Company Bank to permit the execution, delivery and
performance of the applicable Bank Merger Agreement and consummation of the
applicable Bank Merger have been obtained.
(g) To such counsel's knowledge, and except as Previously
Disclosed or as disclosed in the Company's Securities Documents, there are no
material legal or governmental proceedings pending to which the Company or a
Company Subsidiary is a party or to which any property of the Company or a
Company Subsidiary is subject and no such proceedings are threatened by
governmental authorities or by others.
Such counsel also shall state that nothing has caused it to believe
that the information relating to the Company and the Company Subsidiaries
contained or incorporated by reference in (i) the Form S-4, at the time the
Form S-4 and any amendment thereto became effective under the Securities Act,
contained any untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and (ii) the Proxy
Statement, as of the date(s) such Proxy Statement was mailed to shareholders of
the Company and PHFG and up to and including the date(s) of the meetings of
shareholders to which such Proxy Statement relates, contained any untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading.
In rendering their opinion, such counsel may rely, to the extent such
counsel deems such reliance necessary or appropriate, upon (i) certificates of
governmental officials, certificates or opinions of other counsel to the
Company or a Company Subsidiary reasonably satisfactory to the Acquiror and, as
to matters of fact, certificates of officers of the Company or a Company
Subsidiary and (ii) counsel reasonably satisfactory to PHFG with respect to
matters of New Hampshire law. The opinion of such counsel may add other
qualifications and explanations of the basis of their opinion as may be
reasonably acceptable to PHFG.
2
<PAGE> 1
EXHIBIT 10.1
STOCK OPTION AGREEMENT
Stock Option Agreement, dated as of October 27, 1997 (the
"Agreement"), between CFX Corporation, a New Hampshire corporation ("Issuer"),
and Peoples Heritage Financial Group, Inc., a Maine corporation ("Grantee").
WITNESSETH:
WHEREAS, Issuer and Grantee have entered into an Agreement and Plan of
Merger, dated as of October 27, 1997 (the "Plan"), providing for, among other
things, the merger of Issuer with and into Grantee (the "Merger"), with Grantee
as the surviving corporation; and
WHEREAS, as a condition and inducement to Grantee's execution of the
Plan, Grantee has required that Issuer agree, and Issuer has agreed, to grant
to Grantee the Option (as hereinafter defined);
NOW THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein and in
the Plan, and intending to be legally bound hereby, Issuer and Grantee agree as
follows:
1. Defined Terms. Capitalized terms which are used but not
defined herein shall have the meanings ascribed to such terms in the Plan.
2. Grant of Option. Subject to the terms and conditions set
forth herein, Issuer hereby grants to Grantee an irrevocable option (the
"Option") to purchase up to 4,793,062 shares (as adjusted as set forth herein)
(the "Option Shares," which shall include the Option Shares before and after
any transfer of such Option Shares) of Common Stock, par value .66 2/3 per
share ("Issuer Common Stock"), of Issuer at a purchase price per Option Share
(the "Purchase Price") of $22.69, provided, however, that in no event shall the
number of Option Shares for which the Option is exercisable exceed 19.9% of the
issued and outstanding shares of Issuer Common Stock without giving effect to
any shares subject to or issued pursuant to the Option.
3. Exercise of Option.
(a) The Holder (as hereinafter defined), may exercise the Option,
in whole or in part, at any time and from time to time, if, but only if, both a
Preliminary Purchase Event (as hereinafter defined) and a Purchase Event (as
hereinafter defined) shall have occurred prior to the occurrence of an Exercise
Termination Event (as hereinafter defined), provided, however, that if the
Option cannot be exercised on any day because of any injunction, order or
similar restraint issued by a court of competent jurisdiction, the period
during which the Option may be exercised shall be extended so that the Option
shall expire no earlier than on the 10th business day after such injunction,
order or restraint shall have been dissolved
<PAGE> 2
or when such injunction, order or restraint shall have become permanent and no
longer subject to appeal, as the case may be. Each of the following shall be
an "Exercise Termination Event": (A) the Effective Time (as defined in the
Plan) of the Merger, (B) termination of the Plan in accordance with the terms
thereof prior to the occurrence of a Preliminary Purchase Event, other than a
termination of the Plan by Grantee pursuant to Section 7.1(b)(i) (a "Default
Termination") and (C) 12 months after termination of the Plan following the
occurrence of a Preliminary Purchase Event or pursuant to a Default
Termination, provided that if a Preliminary Purchase Event continues or occurs
beyond such termination and prior to the passage of such 12-month period, the
Exercise Termination Event shall be 12 months from the expiration of the last
Preliminary Purchase Event to expire but in no event more than 18 months after
such termination. Notwithstanding anything to the contrary contained herein,
the Option may not be exercised (nor may any of Grantee's rights under Sections
8, 9, 10 or 14(h) hereof be exercised) at any time when Grantee shall be in
willful breach of any of its covenants or agreements contained in the Plan
under circumstances that would entitle Issuer to terminate the Plan. The term
"Holder" shall mean the holder or holders of the Option from time to time, and
which is initially Grantee.
(b) As used herein, a "Preliminary Purchase Event" means any of
the following events:
(i) Without Grantee's prior written consent, Issuer or
any of its Subsidiaries shall have authorized, recommended or
publicly-proposed, or publicly announced an intention to authorize,
recommend or propose, or entered into an agreement with any person
(other than Grantee or any Subsidiary of Grantee) to engage in an
Acquisition Transaction. For purposes of this Agreement, "Acquisition
Transaction" shall mean (A) a merger, consolidation or similar
transaction involving Issuer or any of its Subsidiaries (other than
internal mergers, reorganizations, consolidations or dissolutions
involving only existing Subsidiaries effected in accordance with the
Plan), (B) the purchase, lease or other acquisition of all or a
substantial portion of the consolidated assets or consolidated
deposits of Issuer and its Subsidiaries or (C) a purchase or other
acquisition (including by way of merger, consolidation, share
exchange, Tender Offer or Exchange Offer (as such terms are
hereinafter defined) or otherwise) of securities representing 10% or
more of the voting power of Issuer or any of its Subsidiaries (any of
the foregoing an "Acquisition Transaction");
(ii) 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 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 10% or
more of the then outstanding shares of Issuer Common Stock (such an
offer being referred to herein as a "Tender Offer" and an "Exchange
Offer," respectively);
2
<PAGE> 3
(iii) (A) the holders of Issuer Common Stock shall not have
approved the Plan at the meeting of such stockholders held for the
purpose of voting on the Plan, (B) such meeting shall not have been
held or shall have been canceled prior to termination of the Plan or
(C) Issuer's Board of Directors shall have withdrawn or modified in a
manner adverse to Grantee the recommendation of Issuer's Board of
Directors with respect to the Plan, in each case after it shall have
been publicly announced or become publicly known that any person
(other than Grantee or any Subsidiary of Grantee) shall have (x) made,
or disclosed an intention to make, a proposal to engage in an
Acquisition Transaction, (y) commenced a Tender Offer or filed a
registration statement under the Securities Act with respect to an
Exchange Offer or (z) filed an application (or given notice), whether
in draft or final form, under the Bank Holding Company Act of 1956, as
amended, the Bank Merger Act, as amended, the Change in Bank Control
Act of 1978, as amended, or any other applicable federal or state
banking law for approval to engage in an Acquisition Transaction; or
(iv) Issuer shall have breached any covenant or obligation
contained in the Plan and such breach would entitle Grantee to
terminate the Plan under Section 7.1(b)(i) thereof (without regard to
the cure period provided for therein unless such cure is promptly
effected without jeopardizing consummation of the Merger pursuant to
the terms of the Plan) after (x) a proposal is made by any person
(other than Grantee or any Subsidiary of Grantee) to Issuer or its
stockholders to engage in an Acquisition Transaction, (y) any person
(other than Grantee or any Subsidiary of Grantee) states its intention
to Issuer or its stockholders to make a proposal to engage in an
Acquisition Transaction if the Plan terminates or (z) any person
(other than Grantee or any Subsidiary of Grantee) shall have filed an
application or notice with any Governmental Entity to engage in an
Acquisition Transaction.
(c) As used herein, a "Purchase Event" means any of the following
events:
(i) The occurrence of the Preliminary Purchase Event
described in clause (i) of subsection (b) of this Section 3, except
that the percentage referred to in clause (C) shall be 25%; or
(ii) any person (other than Grantee or any Subsidiary of
Grantee) shall have acquired beneficial ownership (as such term is
defined in Rule 13d-3 promulgated under the Exchange Act) of or the
right to acquire beneficial ownership of, or any "group" (as such term
is defined in Section 13(d)(3) of the Exchange Act) shall have been
formed which beneficially owns or has the right to acquire beneficial
ownership of, 25% or more of the then outstanding shares of Issuer
Common Stock.
As used in this Agreement, "person" shall have the meaning specified
in Sections 3(a)(9) and 13(d)(3) of the Exchange Act.
3
<PAGE> 4
(d) Issuer shall notify Grantee promptly in writing of the
occurrence of any Preliminary Purchase Event or Purchase Event, it being
understood that the giving of such notice by Issuer shall not be a condition to
the right of Holder to exercise the Option.
(e) In the event Holder wishes to exercise the Option, it shall
send to Issuer a written notice (the date of which being herein referred to as
the "Notice Date") specifying (i) the total number of Option Shares it intends
to purchase pursuant to such exercise, and (ii) a place and date not earlier
than three business days nor later than 60 business days from the Notice Date
for the closing (the "Closing") of such purchase (the "Closing Date"), provided
that if prior notification to or approval of the Board of Governors of the
Federal Reserve System (the "Federal Reserve Board") or any other Governmental
Entity is required in connection with such purchase, Holder shall promptly file
the required notice or application for approval and shall expeditiously process
the same (and each party shall cooperate with the other in the filing of any
such notice or application and the obtaining of any such approval) 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. Any exercise of the Option shall
be deemed to occur on the Notice Date relating thereto.
4. Payment and Delivery of Certificates.
(a) On each Closing Date, Holder shall (i) pay to Issuer, in
immediately available funds by wire transfer to a bank account designated by
Issuer, an amount equal to the Purchase Price multiplied by the number of
Option Shares to be purchased on such Closing Date, provided that failure or
refusal of Issuer to designate such a bank account shall not preclude Holder
from exercising the Option, and (ii) present and surrender this Agreement to
Issuer at the address of Issuer specified in Section 14(f) hereof.
(b) At each Closing, simultaneously with the delivery of
immediately available funds and surrender of this Agreement as provided in
Section 4(a), (i) Issuer shall deliver to Holder (A) a certificate or
certificates representing the Option Shares to be purchased at such Closing,
which Option Shares shall be free and clear of all liens, claims, charges and
encumbrances of any kind whatsoever and subject to no preemptive rights, and
(B) if the Option is exercised in part only, an executed new agreement with the
same terms as this Agreement evidencing the right to purchase the balance of
the shares of Issuer Common Stock purchasable hereunder, and (ii) Holder shall
deliver to Issuer a letter agreeing that Holder shall not offer to sell or
otherwise dispose of such Option Shares in violation of applicable federal and
state law or the provisions of this Agreement.
(c) In addition to any other legend that may be required by
applicable law, certificates for the Option Shares delivered at each Closing
shall be endorsed with a restrictive legend which shall read substantially as
follows:
4
<PAGE> 5
THE TRANSFER OF THE STOCK REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO RESTRICTIONS ARISING UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND PURSUANT TO THE TERMS
OF A STOCK OPTION AGREEMENT DATED AS OCTOBER 27, 1997. A COPY
OF SUCH AGREEMENT WILL BE PROVIDED TO THE HOLDER HEREOF
WITHOUT CHARGE UPON RECEIPT BY 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 Holder shall have
delivered to Issuer a copy of a letter from the staff of the Commission, or an
opinion of counsel in form and substance reasonably satisfactory to Issuer and
its counsel, to the effect that such legend is not required for purposes of the
Securities Act.
(d) Upon the giving by Holder to Issuer of the written notice of
exercise of the Option provided for under Section 3(e), the tender of the
applicable purchase price in immediately available funds and the tender of this
Agreement to Issuer, Holder shall be deemed to be the holder of record of the
shares of Issuer Common Stock issuable upon such exercise, notwithstanding that
the stock transfer books of Issuer shall then be closed or that certificates
representing such shares of Issuer Common Stock shall not then be actually
delivered to Holder. 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 4 in the name of Holder or its assignee, transferee or designee.
(e) Issuer agrees (i) that it shall at all times maintain, free
from preemptive rights, sufficient authorized but unissued or treasury shares
of Issuer Common Stock so that the Option may be exercised without additional
authorization of Issuer Common Stock after giving effect to all other options,
warrants, convertible securities and other rights to purchase Issuer Common
Stock, (ii) 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
Issuer, (iii) promptly to take all action as may from time to time be required
(including (A) complying with all premerger notification, reporting and waiting
period requirements and (B) in the event prior approval of or notice to any
Governmental Entity is necessary before the Option may be exercised,
cooperating fully with Holder in preparing such applications or notices and
providing such information to such Governmental Entity as it may require) in
order to permit Holder to exercise the Option and Issuer duly and effectively
to issue shares of Issuer Common Stock pursuant hereto and (iv) promptly to
take all action provided herein to protect the rights of Holder against
dilution.
5. Representations and Warranties of Issuer. Issuer hereby
represents and warrants to Grantee (and Holder, if different than Grantee) as
follows:
5
<PAGE> 6
(a) Due Authorization. Issuer has all requisite corporate power
and authority to enter into 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 authorized
by all necessary corporate action on the part of Issuer, and this Agreement has
been duly executed and delivered by Issuer.
(b) No Violations. The execution and delivery of this Agreement,
the consummation of the transactions contemplated hereby and compliance by
Issuer with any of the provisions hereof will not (i) conflict with or result
in a breach of any provision of its Articles of Incorporation or Bylaws or a
default (or give rise to any right of termination, cancellation or
acceleration) under any of the terms, conditions or provisions of any note,
bond, debenture, mortgage, indenture, license, material agreement or other
material instrument or obligation to which Issuer is a party, or by which it or
any of its properties or assets may be bound, or (ii) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to Issuer or any of
its properties or assets.
(c) Authorized Stock. Issuer has taken all necessary corporate
and other action to authorize and reserve and to permit it to issue, and at all
times from the date hereof until the obligation to deliver Issuer Common Stock
upon the exercise of the Option terminates, will have reserved for issuance
upon exercise of the Option that number of shares of Issuer Common Stock equal
to the maximum number of shares of Issuer Common Stock at any time and from
time to time purchasable upon exercise of the Option, and all such shares, upon
issuance pursuant to the Option, will be duly and validly issued, fully paid
and nonassessable, and will be delivered free and clear of all liens, claims,
charges and encumbrances of any kind or nature whatsoever and not subject to
any preemptive rights.
6. Representations and Warranties of Grantee. Grantee hereby
represents and warrants to Issuer that Grantee has all requisite corporate
power and authority to enter into this Agreement and, subject to any approvals
or consents referred to herein, to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Grantee, and this Agreement has been duly
executed and delivered by Grantee.
7. Adjustment upon Changes in Issuer Capitalization, etc.
(a) In the event of any change in Issuer Common Stock by reason of
a stock dividend, stock split, split-up, recapitalization, combination,
exchange of shares or similar transaction, the type and number of shares or
securities subject to the Option, and the Purchase Price therefor, shall be
adjusted appropriately, and proper provision shall be made in the agreements
governing such transactions so that Holder shall receive, upon exercise of the
Option, the number and class of shares or other securities or property that
Holder would have received in respect of Issuer Common Stock if the Option had
been exercised immediately prior to such event, or the record date therefor, as
applicable. If any additional
6
<PAGE> 7
shares of Issuer Common Stock are issued after the date of this Agreement
(other than pursuant to an event described in the first sentence of this
Section 7(a)), the number of shares of Issuer Common Stock subject to the
Option shall be adjusted so that, after such issuance, it, together with any
shares of Issuer Common Stock previously issued pursuant hereto, equals 19.9%
of the number of shares of Issuer Common Stock then issued and outstanding,
without giving effect to any shares subject to or issued pursuant to the
Option.
(b) In the event that Issuer shall enter in an agreement: (i) to
consolidate with or merge into any person, other than Grantee or one of its
Subsidiaries, and shall not be the continuing or surviving corporation of such
consolidation or merger, (ii) to permit any person, other than Grantee or one
of its Subsidiaries, to merge into Issuer and Issuer shall be the continuing or
surviving corporation, but, in connection with such merger, the then
outstanding shares of Issuer Common Stock shall be changed into or exchanged
for stock or other securities of Issuer or any other person or cash or any
other property or the outstanding shares of Issuer Common Stock immediately
prior to such merger shall after such merger represent less than 50% of the
outstanding shares and share equivalents of the merged company, or (iii) to
sell or otherwise transfer more than 50% of the consolidated assets or deposits
of Issuer and its Subsidiaries to any person, other than Grantee or one of its
Subsidiaries, then, and in each such case (but at the election of Holder in the
case of clause (iii)), the agreement governing such transaction shall make
proper provisions 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
Holder, of any of (x) the Acquiring Corporation (as hereinafter defined), (y)
any person that controls the Acquiring Corporation or (z) in the case of a
merger described in clause (ii), Issuer (such person being referred to as
"Substitute Option Issuer").
(c) 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 be as similar as possible and in no
event less advantageous to Holder. Substitute Option Issuer also shall enter
into an agreement with Holder 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 Substitute Common Stock (as hereinafter defined) as is equal to the
Assigned Value (as hereinafter defined) multiplied by the number of shares of
Issuer Common Stock for which the Option was theretofore exercisable, divided
by the Average Price (as hereinafter defined). The exercise price of the
Substitute Option per share of Substitute Common Stock (the "Substitute Option
Price") shall then be equal to the Purchase Price multiplied by a fraction, the
numerator of which shall be the number of shares of Issuer Common Stock for
which the Option was theretofore exercisable and the denominator of which shall
be the number of shares of Substitute Common Stock for which the Substitute
Option is exercisable.
7
<PAGE> 8
(e) The following terms have the meanings indicated:
(1) "Acquiring Corporation" shall mean (i) the continuing
or surviving corporation of a consolidation or merger with Issuer (if
other than Issuer), (ii) Issuer in a merger in which Issuer is the
continuing or surviving person, or (iii) the transferee of all or
substantially all of Issuer's assets (or a substantial part of the
assets of its subsidiaries taken as a whole).
(2) "Substitute Common Stock" shall mean the shares of
capital stock (or similar equity interest) with the greatest voting
power in respect of the election of directors (or persons similarly
responsible for the direction of the business and affairs) of the
Substitute Option Issuer.
(3) "Assigned Value" shall mean the highest of (w) the
price per share of Issuer Common Stock at which a Tender Offer or an
Exchange Offer therefor has been made, (x) the price per share of
Issuer Common Stock to be paid by any third party pursuant to an
agreement with Issuer, (y) the highest closing price for shares of
Issuer Common Stock within the six-month period immediately preceding
the consolidation, merger or sale in question and (z) in the event of
a sale of more than 50% of the consolidated assets of Issuer and its
subsidiaries, an amount equal to (i) the sum of the price paid in such
sale for such assets and the current market value of the remaining
assets of Issuer, as determined by a nationally-recognized investment
banking firm selected by Holder, divided by (ii) the number of shares
of Issuer Common Stock outstanding at such time. In the event that a
Tender Offer or an Exchange Offer is made for Issuer Common Stock or
an agreement is entered into for a merger or consolidation involving
consideration other than cash, the value of the securities or other
property issuable or deliverable in exchange for Issuer Common Stock
shall be determined by a nationally-recognized investment banking firm
selected by Holder.
(4) "Average Price" shall mean the average closing price
of a share of Substitute Common Stock for the one year immediately
preceding the consolidation, merger or sale in question, but in no
event higher than the closing price of the shares of Substitute Common
Stock on the day preceding such consolidation, merger or sale;
provided that if Issuer is the issuer of the Substitute Option, the
Average Price shall be computed with respect to a share of common
stock issued by Issuer, the person merging into Issuer or by any
company which controls such person, as Holder may elect.
(f) 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 Substitute Common Stock outstanding prior to exercise of the
Substitute Option. In the event that the Substitute Option would be
exercisable for more than 19.9% of the aggregate of the shares of Substitute
Common Stock but for the limitation in the first sentence of this Section 7(f),
8
<PAGE> 9
Substitute Option Issuer shall make a cash payment to Holder equal to the
excess of (i) the value of the Substitute Option without giving effect to the
limitation in the first sentence of this Section 7(f) over (ii) the value of
the Substitute Option after giving effect to the limitation in the first
sentence of this Section 7(f). This difference in value shall be determined by
a nationally-recognized investment banking firm selected by Holder.
(g) Issuer shall not enter into any transaction described in
Section 7(b) unless the Acquiring Corporation and any person that controls the
Acquiring Corporation assume in writing all the obligations of Issuer hereunder
and take all other actions that may be necessary so that the provisions of this
Section 7 are given full force and effect (including, without limitation, any
action that may be necessary so that the holders of the other shares of common
stock issued by Substitute Option Issuer are not entitled to exercise any
rights by reason of the issuance or exercise of the Substitute Option and the
shares of Substitute Common Stock are otherwise in no way distinguishable from
or have lesser economic value (other than any diminution in value resulting
from the fact that the shares of Substitute Common Stock are restricted
securities, as defined in Rule 144 under the Securities Act or any successor
provision) than other shares of common stock issued by Substitute Option
Issuer).
8. Repurchase at the Option of Holder.
(a) At the request of Holder delivered after the first occurrence
of a Repurchase Event (as defined in Section 8(d)) and prior to an Exercise
Termination Event, Issuer shall repurchase from Holder (i) the Option and (ii)
all shares of Issuer Common Stock purchased by Holder pursuant hereto with
respect to which Holder then has beneficial ownership. The date on which
Holder exercises its rights under this Section 8 is referred to as the "Request
Date." Such repurchase shall be at an aggregate price (the "Section 8
Repurchase Consideration") equal to the sum of:
(i) the aggregate Purchase Price paid by Holder for any
shares of Issuer Common Stock acquired pursuant to the Option with
respect to which Holder then has beneficial ownership;
(ii) the excess, if any, of (x) the Applicable Price (as
defined below) for each share of Issuer Common Stock over (y) the
Purchase Price (subject to adjustment pursuant to Section 7),
multiplied by the number of shares of Issuer Common Stock with respect
to which the Option has not been exercised; and
(iii) the excess, if any, of the Applicable Price over the
Purchase Price (subject to adjustment pursuant to Section 7) paid (or,
in the case of Option Shares with respect to which the Option has been
exercised but the Closing Date has not occurred, payable) by Holder
for each share of Issuer Common Stock with respect to which the Option
has been exercised and with respect to which Holder then has
beneficial ownership, multiplied by the number of such shares.
9
<PAGE> 10
(b) If Holder exercises its rights under this Section 8, Issuer
shall, within ten business days after the Request Date, pay the Section 8
Repurchase Consideration to Holder in immediately available funds, and
contemporaneously with such payment Holder shall surrender to Issuer the Option
and the certificates evidencing the shares of Issuer Common Stock purchased
thereunder with respect to which Holder then has beneficial ownership, and
shall warrant that it has sole record and beneficial ownership of such shares
and that the same are then free and clear of all liens, claims, charges and
encumbrances of any kind whatsoever. Notwithstanding the foregoing, to the
extent that prior notification to or approval of the Federal Reserve Board or
any other Governmental Entity is required in connection with the payment of all
or any portion of the Section 8 Repurchase Consideration, Holder shall have the
ongoing option to revoke its request for repurchase pursuant to Section 8, in
whole or in part, or to require that Issuer deliver from time to time that
portion of the Section 8 Repurchase Consideration that it is not then so
prohibited from paying and to promptly file the required notice or application
for approval and expeditiously process the same (and each party shall cooperate
with the other in the filing of any such notice or application and the
obtaining of any such approval), in which case the ten-day period referred to
in the first sentence of this Section 8(b) 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. If the Federal Reserve Board or any other Governmental Entity
disapproves of any part of Issuer's proposed repurchase pursuant to this
Section 8, Issuer shall promptly give notice of such fact to Holder. If the
Federal Reserve Board or any other Governmental Entity prohibits the repurchase
in part but not in whole, then Holder shall have the right (i) to revoke the
repurchase request or (ii) to the extent permitted by the Federal Reserve Board
or other Governmental Entity, determine whether the repurchase should apply to
the Option and/or Option Shares and to what extent to each, and Holder shall
thereupon have the right to exercise the Option as to the number of Option
Shares for which the Option was exercisable at the Request Date less the sum of
the number of shares covered by the Option in respect of which payment has been
made pursuant to Section 8(a)(ii) and the number of shares covered by the
portion of the Option (if any) that has been repurchased. Holder shall notify
Issuer of its determination under the preceding sentence within five business
days of receipt of notice of disapproval of the repurchase.
(c) For purposes of this Agreement, the "Applicable Price" means
the highest of (i) the highest price per share of Issuer Common Stock paid for
any such share by the person or groups described in Section 8(d)(i), (ii) the
price per share of Issuer Common Stock received by holders of Issuer Common
Stock in connection with any merger or other business combination transaction
described in Section 7(b)(i), 7(b)(ii) or 7(b)(iii), or (iii) the highest
closing sales price per share of Issuer Common Stock quoted on the American
Stock Exchange ("AMEX") (or if Issuer Common Stock is not quoted on the AMEX,
the highest bid price per share as quoted on the principal trading market or
securities exchange on which such shares are traded, as reported by a
recognized source chosen by Holder) during the 60 business days preceding the
Request Date; provided, however, that in the event of a sale of less than all
of Issuer's assets, the Applicable Price shall be the sum of the price
10
<PAGE> 11
paid in such sale for such assets and the current market value of the remaining
assets of Issuer as determined by a nationally-recognized investment banking
firm selected by Holder, divided by the number of shares of Issuer Common Stock
outstanding at the time of such sale. If the consideration to be offered, paid
or received pursuant to either of the foregoing clauses (i) or (ii) shall be
other than in cash, the value of such consideration shall be determined in good
faith by an independent nationally-recognized investment banking firm selected
by Holder and reasonably acceptable to Issuer, which determination shall be
conclusive for all purposes of this Agreement.
(d) As used herein, a "Repurchase Event" shall occur if (i) any
person (other than Grantee or any Subsidiary of Grantee) shall have acquired
beneficial ownership of (as such term is defined in Rule 13d-3 promulgated
under the Exchange Act), or the right to acquire beneficial ownership of, or
any "group" (as such term is defined in Section 13(d)(3) of the Exchange Act)
shall have been formed which beneficially owns or has the right to acquire
beneficial ownership of, 25% or more of the then outstanding shares of Issuer
Common Stock, or (ii) any of the transactions described in Section 7(b)(i),
Section 7(b)(ii) or Section 7(b)(iii) shall be consummated. The parties hereto
agree that Issuer's obligations to repurchase the Option or Option Shares under
this Section 8 shall not terminate upon the occurrence of an Exercise
Termination Event unless no Purchase Event shall have occurred prior to the
occurrence of an Exercise Termination Event.
9. Registration Rights.
(a) Demand Registration Rights. Issuer shall, subject to the
conditions of Section 9(c), if requested by any Holder, as expeditiously as
possible prepare and file a registration statement under the Securities Act if
such registration is necessary in order to permit the sale or other disposition
of any or all shares of Issuer Common Stock or other securities that have been
acquired by or are issuable to Holder upon exercise of the Option in accordance
with the intended method of sale or other disposition stated by Holder in such
request, including without limitation a "shelf" registration statement under
Rule 415 under the Securities Act or any successor provision, and Issuer shall
use its best efforts to qualify such shares or other securities for sale under
any applicable state securities laws.
(b) Additional Registration Rights. If Issuer at any time after
the exercise of the Option proposes to register any shares of Issuer Common
Stock under the Securities Act in connection with an underwritten public
offering of such Issuer Common Stock, Issuer will promptly give written notice
to Holder of its intention to do so and, upon the written request of Holder
given within 30 days after receipt of any such notice (which request shall
specify the number of shares of Issuer Common Stock intended to be included in
such underwritten public offering by Holder), Issuer will cause all such shares
for which a Holder shall have requested participation in such registration to
be so registered and included in such underwritten public offering; provided,
however, that Issuer may elect to not cause any such shares to be so registered
(i) if the underwriters in good faith object for valid business reasons, or
(ii) in the case of a registration solely to implement an employee benefit plan
11
<PAGE> 12
or a registration filed on Form S-4 under the Securities Act or any successor
form; provided, further, however, that such election pursuant to clause (i) may
only be made one time. If some but not all the shares of Issuer Common Stock
with respect to which Issuer shall have received requests for registration
pursuant to this Section 9(b) shall be excluded from such registration, Issuer
shall make appropriate allocation of shares to be registered among Holders
permitted to register their shares of Issuer Common Stock in connection with
such registration pro rata in the proportion that the number of shares
requested to be registered by each such Holder bears to the total number of
shares requested to be registered by all such Holders then desiring to have
Issuer Common Stock registered for sale.
(c) Conditions to Required Registration. Issuer shall use all
reasonable efforts to cause each registration statement referred to in Section
9(a) to become effective and to obtain all consents or waivers of other parties
which are required therefor and to keep such registration statement effective;
provided, however, that Issuer may delay any registration of Option Shares
required pursuant to Section 9(a) for a period not exceeding 90 days if Issuer
shall in good faith determine that any such registration would adversely affect
an offering or contemplated offering of other securities by Issuer, and Issuer
shall not be required to register Option Shares under the Securities Act
pursuant to Section 9(a):
(i) prior to the earliest of (A) termination of the Plan
pursuant to Article VII thereof and (B) a Purchase Event that occurs
prior to an Exercise Termination Event;
(ii) on more than one occasion during any calendar year
and on more than two occasions in total;
(iii) within 90 days after the effective date of a
registration referred to in Section 9(b) pursuant to which the Holder
or Holders concerned were afforded the opportunity to register such
shares under the Securities Act and such shares were registered as
requested; and
(iv) unless a request therefor is made to Issuer by the
Holder or Holders of at least 25% or more of the aggregate number of
Option Shares (including shares of Issuer Common Stock issuable upon
exercise of the Option) then outstanding.
In addition to the foregoing, Issuer shall not be required to maintain
the effectiveness of any registration statement after the expiration of nine
months from the effective date of such registration statement. Issuer shall
use all reasonable efforts to make any filings, and take all steps, under all
applicable state securities laws to the extent necessary to permit the sale or
other disposition of the Option Shares so registered in accordance with the
intended method of distribution for such shares, provided, however, that Issuer
shall not be required to consent to general jurisdiction or to qualify to do
business in any state where it is not otherwise required to so consent to such
jurisdiction or to so qualify to do business.
12
<PAGE> 13
(d) Expenses. Issuer will pay all expenses (including without
limitation registration fees, qualification fees, blue sky fees and expenses,
accounting expenses, legal expenses and printing expenses incurred by it) in
connection with each registration pursuant to Section 9(a) or (b) and all other
qualifications, notifications or exemptions pursuant to Section 9(a) or (b).
Underwriting discounts and commissions relating to Option Shares, fees and
disbursements of counsel to the Holder(s) of Option Shares being registered and
any other expenses incurred by such Holder(s) in connection with any such
registration shall be borne by such Holder(s).
(e) Indemnification. In connection with any registration under
Section 9(a) or (b), Issuer hereby indemnifies each Holder, and each
underwriter thereof, including each person, if any, who controls such Holder or
underwriter within the meaning of Section 15 of the Securities Act, against all
expenses, losses, claims, damages and liabilities caused by any untrue, or
alleged untrue, statement of a material fact contained in any registration
statement or prospectus or notification or offering circular (including any
amendments or supplements thereto) or any preliminary prospectus, or caused by
any omission, or alleged omission, to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such expenses, losses, claims, damages or liabilities of such
indemnified party are caused by any untrue statement or alleged untrue
statement that was included by Issuer in any such registration statement or
prospectus or notification or offering circular (including any amendments or
supplements thereto) in reliance upon, and in conformity with, information
furnished in writing to Issuer by such indemnified party expressly for use
therein, and Issuer and each officer, director and controlling person of Issuer
shall be indemnified by such Holder, or by such underwriter, as the case may
be, for all such expenses, losses, claims, damages and liabilities caused by
any untrue, or alleged untrue, statement that was included by Issuer in any
such registration statement or prospectus or notification or offering circular
(including any amendments or supplements thereto) in reliance upon, and in
conformity with, information furnished in writing to Issuer by such Holder or
such underwriter, as the case may be, expressly for such use.
Promptly upon receipt by a party indemnified under this Section 9(e)
of notice of the commencement of any action against such indemnified party in
respect of which indemnity or reimbursement may be sought against any
indemnifying party under this Section 9(e), such indemnified party shall notify
the indemnifying party in writing of the commencement of such action, but,
except to the extent of any actual prejudice to the indemnifying party, the
failure so to notify the indemnifying party shall not relieve it of any
liability which it may otherwise have to any indemnified party under this
Section 9(e). In case notice of commencement of any such action shall be given
to the indemnifying party as above provided, the indemnifying party shall be
entitled to participate in and, to the extent it may wish, jointly with any
other indemnifying party similarly notified, to assume the defense of such
action at its own expense, with counsel chosen by it and reasonably
satisfactory to such indemnified party. The indemnified party shall have the
right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such
13
<PAGE> 14
counsel (other than reasonable costs of investigation) shall be paid by the
indemnified party unless (i) the indemnifying party agrees to pay the same,
(ii) the indemnifying party fails to assume the defense of such action with
counsel reasonably satisfactory to the indemnified party, or (iii) the
indemnified party has been advised by counsel that one or more legal defenses
may be available to the indemnifying party that may be contrary to the interest
of the indemnified party, in which case the indemnifying party shall be
entitled to assume the defense of such action notwithstanding its obligation to
bear fees and expenses of such counsel. No indemnifying party shall be liable
for any settlement entered into without its consent, which consent may not be
unreasonably withheld.
If the indemnification provided for in this Section 9(e) is
unavailable to a party otherwise entitled to be indemnified in respect of any
expenses, losses, claims, damages or liabilities referred to herein, then the
indemnifying party, in lieu of indemnifying such party otherwise entitled to be
indemnified, shall contribute to the amount paid or payable by such party to be
indemnified as a result of such expenses, losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the relative
benefits received by Issuer, the selling Holders and the underwriters from the
offering of the securities and also the relative fault of Issuer, the selling
Holders and the underwriters in connection with the statement or omissions
which results in such expenses, losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The amount paid or payable by
a party as a result of the expenses, losses, claims, damages and liabilities
referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim; provided, however, that in no case shall the
selling Holders be responsible, in the aggregate, for any amount in excess of
the net offering proceeds attributable to its Option Shares included in the
offering. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(g) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. Any
obligation by any Holder to indemnify shall be several and not joint with other
Holders.
In connection with any registration pursuant to Section 9(a) or (b)
above, Issuer and each selling Holder (other than Grantee) shall enter into an
agreement containing the indemnification provisions of this Section 9(e).
(f) Miscellaneous Reporting. Issuer shall comply with all
reporting requirements and will do all such other things as may be necessary to
permit the expeditious sale at any time of any Option Shares by Holder in
accordance with and to the extent permitted by any rule or regulation
permitting nonregistered sales of securities promulgated by the Commission from
time to time, including, without limitation, Rule 144A. Issuer shall at its
expense provide the Holder with any information necessary in connection with
the completion and filing of any reports or forms required to be filed by it
under the Securities Act or the Exchange Act, or required pursuant to any state
securities laws or the rules of any stock exchange.
14
<PAGE> 15
10. Quotation; Listing. If Issuer Common Stock or any other
securities to be acquired upon exercise of the Option are then authorized for
quotation or trading or listing on any securities exchange or national
quotation system, Issuer, upon the request of Holder, will promptly file an
application, if required, to authorize for quotation or trading or listing the
shares of Issuer Common Stock or other securities to be acquired upon exercise
of the Option on such securities exchange or national quotation system and will
use its best efforts to obtain approval, if required, of such quotation or
listing as soon as practicable.
11. Division of Option. Upon the occurrence of a Purchase Event,
this Agreement (and the Option granted hereby) are exchangeable, without
expense, at the option of 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
in the aggregate the same number of shares of Issuer Common Stock purchasable
hereunder. The terms "Agreement" and "Option" as used herein include any other
Agreements and related Options for which this Agreement (and the Option granted
hereby) may be exchanged. Upon receipt by 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, Issuer will execute and deliver a new Agreement of
like tenor and date. Any such new Agreement executed and delivered shall
constitute an additional contractual obligation on the part of Issuer, whether
or not the Agreement so lost, stolen, destroyed or mutilated shall at any time
be enforceable by anyone.
12. Rights Agreement. Issuer shall not approve, adopt or amend,
or propose the approval, adoption or amendment of, any shareholder rights plan
unless such shareholder rights plan contains terms which provide, to the
reasonable satisfaction of Grantee, that (i) the Rights issued pursuant thereto
will not become exercisable by virtue of the fact that Grantee is the
beneficial owner of shares of Issuer Common Stock acquired or acquirable
pursuant to the grant or exercise of the Option and (ii) no restrictions or
limitations with respect to the exercise of any Rights acquired or acquirable
by Grantee will result or be imposed to the extent such Rights relate to the
shares of Issuer Common Stock described in clause (i) of this Section 12. This
covenant shall survive for so long as Grantee is the beneficial owner of shares
of Issuer Common Stock acquired or acquirable pursuant to the grant or exercise
of the Option.
13. Profit Limitation.
(a) Notwithstanding any other provision of this Agreement, in no
event shall the Grantee's Total Profit (as hereinafter defined) exceed
$35,000,000 and, if it otherwise would exceed such amount, the Grantee, at its
sole election, shall either (i) reduce the number of shares of Issuer Common
Stock subject to this Option, (ii) deliver to the Issuer for cancellation
Option Shares previously purchased by Grantee, (iii) pay cash to the Issuer or
(iv) any combination thereof, so that Grantee's actually realized Total Profit
shall not
15
<PAGE> 16
exceed $35,000,000 after taking into account the foregoing actions. As used
herein, the term "Total Profit" shall mean the aggregate amount (before taxes)
of the following: (i) the amount received by Grantee pursuant to Issuer's
repurchase of the Option (or any portion thereof) pursuant to Section 8 hereof,
(ii) (x) the amount received by Grantee pursuant to Issuer's repurchase of the
Option Shares pursuant to Section 8 hereof, less (y) the Grantee's purchase
price for such Option Shares, (iii) (x) the net cash amounts received by
Grantee pursuant to the sale of Option Shares (or any other securities into
which such Option Shares are converted or exchanged) to any unaffiliated party,
less (y) the Grantee's purchase price of such Option Shares, (iv) any amounts
received by Grantee on the transfer of the Option (or any portion thereof) to
any unaffiliated party and (v) any equivalent amount with respect to the
Substitute Option.
(b) Notwithstanding any other provision of this Agreement, this
Option may not be exercised for a number of shares as would, as of the date of
exercise, result in a Notional Total Profit (as hereinafter defined) of more
than $35,000,000, provided that nothing in this sentence shall restrict any
exercise of the Option permitted hereby on any subsequent date. As used
herein, the term "Notional Total Profit" with respect to any number of shares
as to which Grantee may propose to exercise this Option shall be the Total
Profit determined as of the date of such proposed exercise assuming that this
Option were exercised on such date for such number of shares and assuming that
such shares, together with all other Option Shares held by Grantee and its
affiliates as of such date, were sold for cash at the closing market price for
the Common Stock as of the close of business on the preceding trading day (less
customary brokerage commissions).
14. Miscellaneous.
(a) Expenses. Except as otherwise provided in Sections 4 and 9,
each of the parties hereto shall bear and pay all costs and expenses incurred
by it or on its behalf in connection with the transactions contemplated
hereunder, including fees and expenses of its own financial consultants,
investment bankers, accountants and counsel.
(b) Waiver and Amendment. Any provision of this Agreement may be
waived at any time by the party that is entitled to the benefits of such
provision. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement
executed by the parties hereto.
(c) Entire Agreement; No Third Party Beneficiaries; Severability.
This Agreement, together with the Plan and the other documents and instruments
referred to herein and therein, between Grantee and Issuer (i) constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter
hereof, and (ii) is not intended to confer upon any person other than the
parties hereto (other than the indemnified parties under Section 9(e) and any
transferee of the Option Shares or any permitted transferee of this Agreement
pursuant to Section 14(h)) any rights or remedies hereunder. If any term,
provision, covenant or
16
<PAGE> 17
restriction of this Agreement is held by a court of competent jurisdiction or a
federal or state regulatory agency to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of 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 Option does not permit Holder to acquire, or does
not require Issuer to repurchase, the full number of shares of Issuer Common
Stock as provided in Sections 3 and 8 (as adjusted pursuant to Section 7), it
is the express intention of Issuer to allow Holder to acquire or to require
Issuer to repurchase such lesser number of shares as may be permissible without
any amendment or modification hereof.
(d) Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Maine without regard to
any applicable conflicts of law rules.
(e) Descriptive Headings. The descriptive headings contained
herein are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
(f) Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered
personally, telecopied (with confirmation) or sent by overnight mail service or
mailed by registered or certified mail (return receipt requested) postage
prepaid, to the parties at the following address (or at such other address for
a party as shall be specified by like notice):
If to Grantee:
Peoples Heritage Financial Group, Inc.
One Portland Square
Portland, Maine 04112-9540
Attn: William J. Ryan
Chairman, President and Chief Executive Officer
Fax: 207-761-8587
With a required copy to:
Elias, Matz, Tiernan & Herrick L.L.P.
734 15th Street, N.W.
Washington, DC 20005
Attn: Gerard L. Hawkins, Esq.
Fax: 202-347-2172
17
<PAGE> 18
If to Issuer:
CFX Corporation
102 Main Street
Keene, New Hampshire 03431
Attn: Peter J. Baxter
President and Chief Executive Officer
Fax: 603-358-5028
With a required copy to:
Arnold & Porter
555 12th Street
Washington, D.C. 20004
Attn: Steven Kaplan, Esq.
Fax: 202-942-5999
(g) Counterparts. This Agreement and any amendments hereto may
be executed in two counterparts, each of which shall be considered one and the
same agreement and shall become effective when both counterparts have been
signed, it being understood that both parties need not sign the same
counterpart.
(h) Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder or under the Option may be assigned by
either of the parties hereto (whether by operation of law or otherwise) without
the prior written consent of the other party, except that Holder may assign its
rights and obligations hereunder in whole or in part in the event of the
occurrence of a Purchase Event prior to an Exercise Termination Event,
provided, however, that until the date 15 days following the date on which the
Federal Reserve Board approves an application by Grantee to acquire the shares
of Issuer Common Stock subject to the Option, Grantee may not assign its rights
under the Option except in (i) a widely dispersed public distribution, (ii) a
private placement in which no one party acquires the right to purchase in
excess of 2% of the voting shares of Issuer, (iii) an assignment to a single
party (e.g., a broker or investment banker) for the purpose of conducting a
widely dispersed public distribution on Grantee's behalf or (iv) any other
manner approved by the Federal Reserve Board. Subject to the preceding
sentence, this Agreement shall be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors and assigns.
(i) Further Assurances. In the event of any exercise of the
Option by Holder, Issuer and Holder shall execute and deliver all other
documents and instruments and take all other action that may be reasonably
necessary in order to consummate the transactions provided for by such
exercise.
(j) Specific Performance. The parties hereto agree that this
Agreement may be enforced by either party through specific performance,
injunctive relief and other
18
<PAGE> 19
equitable relief. Both parties further agree to waive any requirement for the
securing or posting of any bond in connection with the obtaining of any such
equitable relief and that this provision is without prejudice to any other
rights that the parties hereto may have for any failure to perform this
Agreement.
IN WITNESS WHEREOF, Issuer and Grantee have caused this Stock Option
Agreement to be signed by their respective officers thereunto duly authorized,
all as of the day and year first written above.
<TABLE>
<S> <C>
Attest: CFX CORPORATION
/s/ E.L. Herbert By: /s/ Peter J. Baxter
- -------------------------------------- ------------------------------
Name: E.L. Herbert Name: Peter J. Baxter
Title: Assistant Secretary Title: President and Chief
Executive Officer
PEOPLES HERITAGE
FINANCIAL GROUP, INC.
Attest:
/s/ Peter J. Verrill By: /s/ William J. Ryan
- -------------------------------------- --------------------------------------
Name: Peter J. Verrill Name: William J. Ryan
Title: Executive Vice President, Title: Chairman, President
Chief Operating Officer and Chief Executive Officer
and Chief Financial Officer
</TABLE>
19
<PAGE> 1
EXHIBIT 10.2
STOCK OPTION AGREEMENT
Stock Option Agreement, dated as of October 27, 1997 (the
"Agreement"), between Peoples Heritage Financial Group, Inc., a Maine
corporation ("Issuer"), and CFX Corporation, a New Hampshire corporation
("Grantee").
WITNESSETH:
WHEREAS, Issuer and Grantee have entered into an Agreement and Plan of
Merger, dated as of October 27, 1997 (the "Plan"), providing for, among other
things, the merger of Grantee with and into Issuer (the "Merger"), with Issuer
as the surviving corporation; and
WHEREAS, as a condition and inducement to Grantee's execution of the
Plan, Grantee has required that Issuer agree, and Issuer has agreed, to grant
to Grantee the Option (as hereinafter defined);
NOW THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein and in
the Plan, and intending to be legally bound hereby, Issuer and Grantee agree as
follows:
1. Defined Terms. Capitalized terms which are used but not
defined herein shall have the meanings ascribed to such terms in the Plan.
2. Grant of Option. Subject to the terms and conditions
set forth herein, Issuer hereby grants to Grantee an irrevocable option (the
"Option") to purchase up to 2,769,736 shares (as adjusted as set forth herein)
(the "Option Shares," which shall include the Option Shares before and after
any transfer of such Option Shares) of Common Stock, par value $.01 per share
("Issuer Common Stock"), of Issuer at a purchase price per Option Share (the
"Purchase Price") of $43.13, provided, however, that in no event shall the
number of Option Shares for which the Option is exercisable exceed 10.0% of the
issued and outstanding shares of Issuer Common Stock without giving effect to
any shares subject to or issued pursuant to the Option. Each Option Share
issued upon exercise of the Option shall be accompanied by PHFG Rights as
provided in the PHFG Rights Agreement.
3. Exercise of Option.
(a) The Holder (as hereinafter defined), may exercise the Option,
in whole or in part, at any time and from time to time, if, but only if, both a
Preliminary Purchase Event (as hereinafter defined) and a Purchase Event (as
hereinafter defined) shall have occurred prior to the occurrence of an Exercise
Termination Event (as hereinafter defined), provided, however, that if the
Option cannot be exercised on any day because of any injunction, order or
similar restraint issued by a court of competent jurisdiction, the period
during which the Option may be exercised shall be extended so that the Option
shall expire no earlier than
<PAGE> 2
on the 10th business day after such injunction, order or restraint shall have
been dissolved or when such injunction, order or restraint shall have become
permanent and no longer subject to appeal, as the case may be. Each of the
following shall be an "Exercise Termination Event": (A) the Effective Time (as
defined in the Plan) of the Merger, (B) termination of the Plan in accordance
with the terms thereof prior to the occurrence of a Preliminary Purchase Event,
other than a termination of the Plan by Grantee pursuant to Section 7.1(b)(i)
(a "Default Termination") and (C) 12 months after termination of the Plan
following the occurrence of a Preliminary Purchase Event or pursuant to a
Default Termination, provided that if a Preliminary Purchase Event continues or
occurs beyond such termination and prior to the passage of such 12-month
period, the Exercise Termination Event shall be 12 months from the expiration
of the last Preliminary Purchase Event to expire but in no event more than 18
months after such termination. Notwithstanding anything to the contrary
contained herein, the Option may not be exercised (nor may any of Grantee's
rights under Sections 8, 9, 10 or 13(h) hereof be exercised) at any time when
Grantee shall be in willful breach of any of its covenants or agreements
contained in the Plan under circumstances that would entitle Issuer to
terminate the Plan. The term "Holder" shall mean the holder or holders of the
Option from time to time, and which is initially Grantee.
(b) As used herein, a "Preliminary Purchase Event" means any of
the following events:
(i) Without Grantee's prior written consent, Issuer or
any of its Subsidiaries shall have authorized, recommended or
publicly-proposed, or publicly announced an intention to authorize,
recommend or propose, or entered into an agreement with any person
(other than Grantee or any Subsidiary of Grantee) to engage in an
Acquisition Transaction. For purposes of this Agreement, "Acquisition
Transaction" shall mean (A) a merger, consolidation or similar
transaction involving Issuer or any of its Subsidiaries (other than
internal mergers, reorganizations, consolidations or dissolutions
involving only existing Subsidiaries effected in accordance with the
Plan), (B) the purchase, lease or other acquisition of all or a
substantial portion of the consolidated assets or consolidated
deposits of Issuer and its Subsidiaries or (C) a purchase or other
acquisition (including by way of merger, consolidation, share
exchange, Tender Offer or Exchange Offer (as such terms are
hereinafter defined) or otherwise) of securities representing 10% or
more of the voting power of Issuer or any of its Subsidiaries (any of
the foregoing an "Acquisition Transaction");
(ii) 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 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 10%
2
<PAGE> 3
or more of the then outstanding shares of Issuer Common Stock (such an
offer being referred to herein as a "Tender Offer" and an "Exchange
Offer," respectively);
(iii) (A) the holders of Issuer Common Stock shall not have
approved the Plan at the meeting of such stockholders held for the
purpose of voting on the Plan, (B) such meeting shall not have been
held or shall have been canceled prior to termination of the Plan or
(C) Issuer's Board of Directors shall have withdrawn or modified in a
manner adverse to Grantee the recommendation of Issuer's Board of
Directors with respect to the Plan, in each case after it shall have
been publicly announced or become publicly known that any person
(other than Grantee or any Subsidiary of Grantee) shall have (x) made,
or disclosed an intention to make, a proposal to engage in an
Acquisition Transaction, (y) commenced a Tender Offer or filed a
registration statement under the Securities Act with respect to an
Exchange Offer or (z) filed an application (or given notice), whether
in draft or final form, under the Bank Holding Company Act of 1956, as
amended, the Bank Merger Act, as amended, the Change in Bank Control
Act of 1978, as amended, or any other applicable federal or state
banking law for approval to engage in an Acquisition Transaction; or
(iv) Issuer shall have breached any covenant or obligation
contained in the Plan and such breach would entitle Grantee to
terminate the Plan under Section 7.1(b)(i) thereof (without regard to
the cure period provided for therein unless such cure is promptly
effected without jeopardizing consummation of the Merger pursuant to
the terms of the Plan) after (x) a proposal is made by any person
(other than Grantee or any Subsidiary of Grantee) to Issuer or its
stockholders to engage in an Acquisition Transaction, (y) any person
(other than Grantee or any Subsidiary of Grantee) states its intention
to Issuer or its stockholders to make a proposal to engage in an
Acquisition Transaction if the Plan terminates or (z) any person
(other than Grantee or any Subsidiary of Grantee) shall have filed an
application or notice with any Governmental Entity to engage in an
Acquisition Transaction.
(c) As used herein, a "Purchase Event" means any of the following
events:
(i) The occurrence of the Preliminary Purchase Event
described in clause (i) of subsection (b) of this Section 3, except
that the percentage referred to in clause (C) shall be 25%; or
(ii) any person (other than Grantee or any Subsidiary of
Grantee) shall have acquired beneficial ownership (as such term is
defined in Rule 13d-3 promulgated under the Exchange Act) of or the
right to acquire beneficial ownership of, or any "group" (as such term
is defined in Section 13(d)(3) of the Exchange Act) shall have been
formed which beneficially owns or has the right to acquire beneficial
ownership of, 25% or more of the then outstanding shares of Issuer
Common Stock.
3
<PAGE> 4
As used in this Agreement, "person" shall have the meaning specified
in Sections 3(a)(9) and 13(d)(3) of the Exchange Act.
(d) Issuer shall notify Grantee promptly in writing of the
occurrence of any Preliminary Purchase Event or Purchase Event, it being
understood that the giving of such notice by Issuer shall not be a condition to
the right of Holder to exercise the Option.
(e) In the event Holder wishes to exercise the Option, it shall
send to Issuer a written notice (the date of which being herein referred to as
the "Notice Date") specifying (i) the total number of Option Shares it intends
to purchase pursuant to such exercise, and (ii) a place and date not earlier
than three business days nor later than 60 business days from the Notice Date
for the closing (the "Closing") of such purchase (the "Closing Date"), provided
that if prior notification to or approval of the Board of Governors of the
Federal Reserve System (the "Federal Reserve Board") or any other Governmental
Entity is required in connection with such purchase, Holder shall promptly file
the required notice or application for approval and shall expeditiously process
the same (and each party shall cooperate with the other in the filing of any
such notice or application and the obtaining of any such approval) 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. Any exercise of the Option shall
be deemed to occur on the Notice Date relating thereto.
4. Payment and Delivery of Certificates.
(a) On each Closing Date, Holder shall (i) pay to Issuer, in
immediately available funds by wire transfer to a bank account designated by
Issuer, an amount equal to the Purchase Price multiplied by the number of
Option Shares to be purchased on such Closing Date, provided that failure or
refusal of Issuer to designate such a bank account shall not preclude Holder
from exercising the Option, and (ii) present and surrender this Agreement to
Issuer at the address of Issuer specified in Section 13(f) hereof.
(b) At each Closing, simultaneously with the delivery of
immediately available funds and surrender of this Agreement as provided in
Section 4(a), (i) Issuer shall deliver to Holder (A) a certificate or
certificates representing the Option Shares to be purchased at such Closing,
which Option Shares shall be free and clear of all liens, claims, charges and
encumbrances of any kind whatsoever and subject to no preemptive rights, and
(B) if the Option is exercised in part only, an executed new agreement with the
same terms as this Agreement evidencing the right to purchase the balance of
the shares of Issuer Common Stock purchasable hereunder, and (ii) Holder shall
deliver to Issuer a letter agreeing that Holder shall not offer to sell or
otherwise dispose of such Option Shares in violation of applicable federal and
state law or the provisions of this Agreement.
4
<PAGE> 5
(c) In addition to any other legend that may be required by
applicable law, certificates for the Option Shares delivered at each Closing
shall be endorsed with a restrictive legend which shall read substantially as
follows:
THE TRANSFER OF THE STOCK REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO RESTRICTIONS ARISING UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND PURSUANT TO THE TERMS
OF A STOCK OPTION AGREEMENT DATED AS OCTOBER 27, 1997. A COPY
OF SUCH AGREEMENT WILL BE PROVIDED TO THE HOLDER HEREOF
WITHOUT CHARGE UPON RECEIPT BY 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 Holder shall have
delivered to Issuer a copy of a letter from the staff of the Commission, or an
opinion of counsel in form and substance reasonably satisfactory to Issuer and
its counsel, to the effect that such legend is not required for purposes of the
Securities Act.
(d) Upon the giving by Holder to Issuer of the written notice of
exercise of the Option provided for under Section 3(e), the tender of the
applicable purchase price in immediately available funds and the tender of this
Agreement to Issuer, Holder shall be deemed to be the holder of record of the
shares of Issuer Common Stock issuable upon such exercise, notwithstanding that
the stock transfer books of Issuer shall then be closed or that certificates
representing such shares of Issuer Common Stock shall not then be actually
delivered to Holder. 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 4 in the name of Holder or its assignee, transferee or designee.
(e) Issuer agrees (i) that it shall at all times maintain, free
from preemptive rights, sufficient authorized but unissued or treasury shares
of Issuer Common Stock so that the Option may be exercised without additional
authorization of Issuer Common Stock after giving effect to all other options,
warrants, convertible securities and other rights to purchase Issuer Common
Stock, (ii) 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
Issuer, (iii) promptly to take all action as may from time to time be required
(including (A) complying with all premerger notification, reporting and waiting
period requirements and (B) in the event prior approval of or notice to any
Governmental Entity is necessary before the Option may be exercised,
cooperating fully with Holder in preparing such applications or notices and
providing such information to such Governmental Entity as it may require) in
order to permit Holder to exercise the Option and Issuer duly and effectively
to issue shares of Issuer Common Stock
5
<PAGE> 6
pursuant hereto and (iv) promptly to take all action provided herein to protect
the rights of Holder against dilution.
5. Representations and Warranties of Issuer. Issuer hereby
represents and warrants to Grantee (and Holder, if different than Grantee) as
follows:
(a) Due Authorization. Issuer has all requisite corporate power
and authority to enter into 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 authorized
by all necessary corporate action on the part of Issuer, and this Agreement has
been duly executed and delivered by Issuer.
(b) No Violations. The execution and delivery of this Agreement,
the consummation of the transactions contemplated hereby and compliance by
Issuer with any of the provisions hereof will not (i) conflict with or result
in a breach of any provision of its Articles of Incorporation or Bylaws or a
default (or give rise to any right of termination, cancellation or
acceleration) under any of the terms, conditions or provisions of any note,
bond, debenture, mortgage, indenture, license, material agreement or other
material instrument or obligation to which Issuer is a party, or by which it or
any of its properties or assets may be bound, or (ii) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to Issuer or any of
its properties or assets.
(c) Authorized Stock. Issuer has taken all necessary corporate
and other action to authorize and reserve and to permit it to issue, and at all
times from the date hereof until the obligation to deliver Issuer Common Stock
upon the exercise of the Option terminates, will have reserved for issuance
upon exercise of the Option that number of shares of Issuer Common Stock equal
to the maximum number of shares of Issuer Common Stock at any time and from
time to time purchasable upon exercise of the Option, and all such shares, upon
issuance pursuant to the Option, will be duly and validly issued, fully paid
and nonassessable, and will be delivered free and clear of all liens, claims,
charges and encumbrances of any kind or nature whatsoever and not subject to
any preemptive rights.
6. Representations and Warranties of Grantee. Grantee hereby
represents and warrants to Issuer that Grantee has all requisite corporate
power and authority to enter into this Agreement and, subject to any approvals
or consents referred to herein, to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Grantee, and this Agreement has been duly
executed and delivered by Grantee.
7. Adjustment upon Changes in Issuer Capitalization, etc.
(a) In the event of any change in Issuer Common Stock by reason of
a stock dividend, stock split, split-up, recapitalization, combination,
exchange of shares or similar
6
<PAGE> 7
transaction, the type and number of shares or securities subject to the Option,
and the Purchase Price therefor, shall be adjusted appropriately, and proper
provision shall be made in the agreements governing such transactions so that
Holder shall receive, upon exercise of the Option, the number and class of
shares or other securities or property that Holder would have received in
respect of Issuer Common Stock if the Option had been exercised immediately
prior to such event, or the record date therefor, as applicable. If any
additional shares of Issuer Common Stock are issued after the date of this
Agreement (other than pursuant to an event described in the first sentence of
this Section 7(a)), the number of shares of Issuer Common Stock subject to the
Option shall be adjusted so that, after such issuance, it, together with any
shares of Issuer Common Stock previously issued pursuant hereto, equals 10.0%
of the number of shares of Issuer Common Stock then issued and outstanding,
without giving effect to any shares subject to or issued pursuant to the
Option.
(b) In the event that Issuer shall enter in an agreement: (i) to
consolidate with or merge into any person, other than Grantee or one of its
Subsidiaries, and shall not be the continuing or surviving corporation of such
consolidation or merger, (ii) to permit any person, other than Grantee or one
of its Subsidiaries, to merge into Issuer and Issuer shall be the continuing or
surviving corporation, but, in connection with such merger, the then
outstanding shares of Issuer Common Stock shall be changed into or exchanged
for stock or other securities of Issuer or any other person or cash or any
other property or the outstanding shares of Issuer Common Stock immediately
prior to such merger shall after such merger represent less than 50% of the
outstanding shares and share equivalents of the merged company, or (iii) to
sell or otherwise transfer more than 50% of the consolidated assets or deposits
of Issuer and its Subsidiaries to any person, other than Grantee or one of its
Subsidiaries, then, and in each such case (but at the election of Holder in the
case of clause (iii)), the agreement governing such transaction shall make
proper provisions 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
Holder, of any of (x) the Acquiring Corporation (as hereinafter defined), (y)
any person that controls the Acquiring Corporation or (z) in the case of a
merger described in clause (ii), Issuer (such person being referred to as
"Substitute Option Issuer").
(c) 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 be as similar as possible and in no
event less advantageous to Holder. Substitute Option Issuer also shall enter
into an agreement with Holder 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 Substitute Common Stock (as hereinafter defined) as is equal to the
Assigned Value (as hereinafter defined) multiplied by the number of shares of
Issuer Common Stock for which the Option was theretofore exercisable, divided
by the Average Price (as hereinafter defined). The exercise price of the
Substitute Option per share of Substitute Common Stock
7
<PAGE> 8
(the "Substitute Option Price") shall then be equal to the Purchase Price
multiplied by a fraction, the numerator of which shall be the number of shares
of Issuer Common Stock for which the Option was theretofore exercisable and the
denominator of which shall be the number of shares of Substitute Common Stock
for which the Substitute Option is exercisable.
(e) The following terms have the meanings indicated:
(1) "Acquiring Corporation" shall mean (i) the continuing
or surviving corporation of a consolidation or merger with Issuer (if
other than Issuer), (ii) Issuer in a merger in which Issuer is the
continuing or surviving person, or (iii) the transferee of all or
substantially all of Issuer's assets (or a substantial part of the
assets of its subsidiaries taken as a whole).
(2) "Substitute Common Stock" shall mean the shares of
capital stock (or similar equity interest) with the greatest voting
power in respect of the election of directors (or persons similarly
responsible for the direction of the business and affairs) of the
Substitute Option Issuer.
(3) "Assigned Value" shall mean the highest of (w) the
price per share of Issuer Common Stock at which a Tender Offer or an
Exchange Offer therefor has been made, (x) the price per share of
Issuer Common Stock to be paid by any third party pursuant to an
agreement with Issuer, (y) the highest closing price for shares of
Issuer Common Stock within the six-month period immediately preceding
the consolidation, merger or sale in question and (z) in the event of
a sale of more than 50% of the consolidated assets of Issuer and its
subsidiaries, an amount equal to (i) the sum of the price paid in such
sale for such assets and the current market value of the remaining
assets of Issuer, as determined by a nationally-recognized investment
banking firm selected by Holder, divided by (ii) the number of shares
of Issuer Common Stock outstanding at such time. In the event that a
Tender Offer or an Exchange Offer is made for Issuer Common Stock or
an agreement is entered into for a merger or consolidation involving
consideration other than cash, the value of the securities or other
property issuable or deliverable in exchange for Issuer Common Stock
shall be determined by a nationally-recognized investment banking firm
selected by Holder.
(4) "Average Price" shall mean the average closing price
of a share of Substitute Common Stock for the one year immediately
preceding the consolidation, merger or sale in question, but in no
event higher than the closing price of the shares of Substitute Common
Stock on the day preceding such consolidation, merger or sale;
provided that if Issuer is the issuer of the Substitute Option, the
Average Price shall be computed with respect to a share of common
stock issued by Issuer, the person merging into Issuer or by any
company which controls such person, as Holder may elect.
8
<PAGE> 9
(f) In no event, pursuant to any of the foregoing paragraphs,
shall the Substitute Option be exercisable for more than 10.0% of the aggregate
of the shares of Substitute Common Stock outstanding prior to exercise of the
Substitute Option. In the event that the Substitute Option would be
exercisable for more than 10.0% of the aggregate of the shares of Substitute
Common Stock but for the limitation in the first sentence of this Section 7(f),
Substitute Option Issuer shall make a cash payment to Holder equal to the
excess of (i) the value of the Substitute Option without giving effect to the
limitation in the first sentence of this Section 7(f) over (ii) the value of
the Substitute Option after giving effect to the limitation in the first
sentence of this Section 7(f). This difference in value shall be determined by
a nationally-recognized investment banking firm selected by Holder.
(g) Issuer shall not enter into any transaction described in
Section 7(b) unless the Acquiring Corporation and any person that controls the
Acquiring Corporation assume in writing all the obligations of Issuer hereunder
and take all other actions that may be necessary so that the provisions of this
Section 7 are given full force and effect (including, without limitation, any
action that may be necessary so that the holders of the other shares of common
stock issued by Substitute Option Issuer are not entitled to exercise any
rights by reason of the issuance or exercise of the Substitute Option and the
shares of Substitute Common Stock are otherwise in no way distinguishable from
or have lesser economic value (other than any diminution in value resulting
from the fact that the shares of Substitute Common Stock are restricted
securities, as defined in Rule 144 under the Securities Act or any successor
provision) than other shares of common stock issued by Substitute Option
Issuer).
8. Repurchase at the Option of Holder.
(a) At the request of Holder delivered after the first occurrence
of a Repurchase Event (as defined in Section 8(d)) and prior to an Exercise
Termination Event, Issuer shall repurchase from Holder (i) the Option and (ii)
all shares of Issuer Common Stock purchased by Holder pursuant hereto with
respect to which Holder then has beneficial ownership. The date on which
Holder exercises its rights under this Section 8 is referred to as the "Request
Date." Such repurchase shall be at an aggregate price (the "Section 8
Repurchase Consideration") equal to the sum of:
(i) the aggregate Purchase Price paid by Holder for any
shares of Issuer Common Stock acquired pursuant to the Option with
respect to which Holder then has beneficial ownership;
(ii) the excess, if any, of (x) the Applicable Price (as
defined below) for each share of Issuer Common Stock over (y) the
Purchase Price (subject to adjustment pursuant to Section 7),
multiplied by the number of shares of Issuer Common Stock with respect
to which the Option has not been exercised; and
9
<PAGE> 10
(iii) the excess, if any, of the Applicable Price over the
Purchase Price (subject to adjustment pursuant to Section 7) paid (or,
in the case of Option Shares with respect to which the Option has been
exercised but the Closing Date has not occurred, payable) by Holder
for each share of Issuer Common Stock with respect to which the Option
has been exercised and with respect to which Holder then has
beneficial ownership, multiplied by the number of such shares.
(b) If Holder exercises its rights under this Section 8, Issuer
shall, within ten business days after the Request Date, pay the Section 8
Repurchase Consideration to Holder in immediately available funds, and
contemporaneously with such payment Holder shall surrender to Issuer the Option
and the certificates evidencing the shares of Issuer Common Stock purchased
thereunder with respect to which Holder then has beneficial ownership, and
shall warrant that it has sole record and beneficial ownership of such shares
and that the same are then free and clear of all liens, claims, charges and
encumbrances of any kind whatsoever. Notwithstanding the foregoing, to the
extent that prior notification to or approval of the Federal Reserve Board or
any other Governmental Entity is required in connection with the payment of all
or any portion of the Section 8 Repurchase Consideration, Holder shall have the
ongoing option to revoke its request for repurchase pursuant to Section 8, in
whole or in part, or to require that Issuer deliver from time to time that
portion of the Section 8 Repurchase Consideration that it is not then so
prohibited from paying and to promptly file the required notice or application
for approval and expeditiously process the same (and each party shall cooperate
with the other in the filing of any such notice or application and the
obtaining of any such approval), in which case the ten-day period referred to
in the first sentence of this Section 8(b) 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. If the Federal Reserve Board or any other Governmental Entity
disapproves of any part of Issuer's proposed repurchase pursuant to this
Section 8, Issuer shall promptly give notice of such fact to Holder. If the
Federal Reserve Board or any other Governmental Entity prohibits the repurchase
in part but not in whole, then Holder shall have the right (i) to revoke the
repurchase request or (ii) to the extent permitted by the Federal Reserve Board
or other Governmental Entity, determine whether the repurchase should apply to
the Option and/or Option Shares and to what extent to each, and Holder shall
thereupon have the right to exercise the Option as to the number of Option
Shares for which the Option was exercisable at the Request Date less the sum of
the number of shares covered by the Option in respect of which payment has been
made pursuant to Section 8(a)(ii) and the number of shares covered by the
portion of the Option (if any) that has been repurchased. Holder shall notify
Issuer of its determination under the preceding sentence within five business
days of receipt of notice of disapproval of the repurchase.
(c) For purposes of this Agreement, the "Applicable Price" means
the highest of (i) the highest price per share of Issuer Common Stock paid for
any such share by the person or groups described in Section 8(d)(i), (ii) the
price per share of Issuer Common Stock received by holders of Issuer Common
Stock in connection with any merger or other
10
<PAGE> 11
business combination transaction described in Section 7(b)(i), 7(b)(ii) or
7(b)(iii), or (iii) the highest closing sales price per share of Issuer Common
Stock quoted on the Nasdaq Stock Market's National Market ("NMS") (or if Issuer
Common Stock is not quoted on the NMS, the highest bid price per share as
quoted on the principal trading market or securities exchange on which such
shares are traded, as reported by a recognized source chosen by Holder) during
the 60 business days preceding the Request Date; provided, however, that in the
event of a sale of less than all of Issuer's assets, the Applicable Price shall
be the sum of the price paid in such sale for such assets and the current
market value of the remaining assets of Issuer as determined by a
nationally-recognized investment banking firm selected by Holder, divided by
the number of shares of Issuer Common Stock outstanding at the time of such
sale. If the consideration to be offered, paid or received pursuant to either
of the foregoing clauses (i) or (ii) shall be other than in cash, the value of
such consideration shall be determined in good faith by an independent
nationally-recognized investment banking firm selected by Holder and reasonably
acceptable to Issuer, which determination shall be conclusive for all purposes
of this Agreement.
(d) As used herein, a "Repurchase Event" shall occur if (i) any
person (other than Grantee or any Subsidiary of Grantee) shall have acquired
beneficial ownership of (as such term is defined in Rule 13d-3 promulgated
under the Exchange Act), or the right to acquire beneficial ownership of, or
any "group" (as such term is defined in Section 13(d)(3) of the Exchange Act)
shall have been formed which beneficially owns or has the right to acquire
beneficial ownership of, 50% or more of the then outstanding shares of Issuer
Common Stock, or (ii) any of the transactions described in Section 7(b)(i),
Section 7(b)(ii) or Section 7(b)(iii) shall be consummated. The parties hereto
agree that Issuer's obligations to repurchase the Option or Option Shares under
this Section 8 shall not terminate upon the occurrence of an Exercise
Termination Event unless no Purchase Event shall have occurred prior to the
occurrence of an Exercise Termination Event.
9. Registration Rights.
(a) Demand Registration Rights. Issuer shall, subject to the
conditions of Section 9(c), if requested by any Holder, as expeditiously as
possible prepare and file a registration statement under the Securities Act if
such registration is necessary in order to permit the sale or other disposition
of any or all shares of Issuer Common Stock or other securities that have been
acquired by or are issuable to Holder upon exercise of the Option in accordance
with the intended method of sale or other disposition stated by Holder in such
request, including without limitation a "shelf" registration statement under
Rule 415 under the Securities Act or any successor provision, and Issuer shall
use its best efforts to qualify such shares or other securities for sale under
any applicable state securities laws.
(b) Additional Registration Rights. If Issuer at any time after
the exercise of the Option proposes to register any shares of Issuer Common
Stock under the Securities Act in connection with an underwritten public
offering of such Issuer Common Stock, Issuer will promptly give written notice
to Holder of its intention to do so and, upon the written
11
<PAGE> 12
request of Holder given within 30 days after receipt of any such notice (which
request shall specify the number of shares of Issuer Common Stock intended to
be included in such underwritten public offering by Holder), Issuer will cause
all such shares for which a Holder shall have requested participation in such
registration to be so registered and included in such underwritten public
offering; provided, however, that Issuer may elect to not cause any such
shares to be so registered (i) if the underwriters in good faith object for
valid business reasons, or (ii) in the case of a registration solely to
implement an employee benefit plan or a registration filed on Form S-4 under
the Securities Act or any successor form; provided, further, however, that such
election pursuant to clause (i) may only be made one time. If some but not all
the shares of Issuer Common Stock with respect to which Issuer shall have
received requests for registration pursuant to this Section 9(b) shall be
excluded from such registration, Issuer shall make appropriate allocation of
shares to be registered among Holders permitted to register their shares of
Issuer Common Stock in connection with such registration pro rata in the
proportion that the number of shares requested to be registered by each such
Holder bears to the total number of shares requested to be registered by all
such Holders then desiring to have Issuer Common Stock registered for sale.
(c) Conditions to Required Registration. Issuer shall use all
reasonable efforts to cause each registration statement referred to in Section
9(a) to become effective and to obtain all consents or waivers of other parties
which are required therefor and to keep such registration statement effective;
provided, however, that Issuer may delay any registration of Option Shares
required pursuant to Section 9(a) for a period not exceeding 90 days if Issuer
shall in good faith determine that any such registration would adversely affect
an offering or contemplated offering of other securities by Issuer, and Issuer
shall not be required to register Option Shares under the Securities Act
pursuant to Section 9(a):
(i) prior to the earliest of (A) termination of the Plan
pursuant to Article VII thereof and (B) a Purchase Event that occurs
prior to an Exercise Termination Event;
(ii) on more than one occasion during any calendar year
and on more than two occasions in total;
(iii) within 90 days after the effective date of a
registration referred to in Section 9(b) pursuant to which the Holder
or Holders concerned were afforded the opportunity to register such
shares under the Securities Act and such shares were registered as
requested; and
(iv) unless a request therefor is made to Issuer by the
Holder or Holders of at least 25% or more of the aggregate number of
Option Shares (including shares of Issuer Common Stock issuable upon
exercise of the Option) then outstanding.
In addition to the foregoing, Issuer shall not be required to maintain
the effectiveness of any registration statement after the expiration of nine
months from the effective date of
12
<PAGE> 13
such registration statement. Issuer shall use all reasonable efforts to make
any filings, and take all steps, under all applicable state securities laws to
the extent necessary to permit the sale or other disposition of the Option
Shares so registered in accordance with the intended method of distribution for
such shares, provided, however, that Issuer shall not be required to consent to
general jurisdiction or to qualify to do business in any state where it is not
otherwise required to so consent to such jurisdiction or to so qualify to do
business.
(d) Expenses. Issuer will pay all expenses (including without
limitation registration fees, qualification fees, blue sky fees and expenses,
accounting expenses, legal expenses and printing expenses incurred by it) in
connection with each registration pursuant to Section 9(a) or (b) and all other
qualifications, notifications or exemptions pursuant to Section 9(a) or (b).
Underwriting discounts and commissions relating to Option Shares, fees and
disbursements of counsel to the Holder(s) of Option Shares being registered and
any other expenses incurred by such Holder(s) in connection with any such
registration shall be borne by such Holder(s).
(e) Indemnification. In connection with any registration under
Section 9(a) or (b), Issuer hereby indemnifies each Holder, and each
underwriter thereof, including each person, if any, who controls such Holder or
underwriter within the meaning of Section 15 of the Securities Act, against all
expenses, losses, claims, damages and liabilities caused by any untrue, or
alleged untrue, statement of a material fact contained in any registration
statement or prospectus or notification or offering circular (including any
amendments or supplements thereto) or any preliminary prospectus, or caused by
any omission, or alleged omission, to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such expenses, losses, claims, damages or liabilities of such
indemnified party are caused by any untrue statement or alleged untrue
statement that was included by Issuer in any such registration statement or
prospectus or notification or offering circular (including any amendments or
supplements thereto) in reliance upon, and in conformity with, information
furnished in writing to Issuer by such indemnified party expressly for use
therein, and Issuer and each officer, director and controlling person of Issuer
shall be indemnified by such Holder, or by such underwriter, as the case may
be, for all such expenses, losses, claims, damages and liabilities caused by
any untrue, or alleged untrue, statement that was included by Issuer in any
such registration statement or prospectus or notification or offering circular
(including any amendments or supplements thereto) in reliance upon, and in
conformity with, information furnished in writing to Issuer by such Holder or
such underwriter, as the case may be, expressly for such use.
Promptly upon receipt by a party indemnified under this Section 9(e)
of notice of the commencement of any action against such indemnified party in
respect of which indemnity or reimbursement may be sought against any
indemnifying party under this Section 9(e), such indemnified party shall notify
the indemnifying party in writing of the commencement of such action, but,
except to the extent of any actual prejudice to the indemnifying party, the
failure so to notify the indemnifying party shall not relieve it of any
liability which it may
13
<PAGE> 14
otherwise have to any indemnified party under this Section 9(e). In case
notice of commencement of any such action shall be given to the indemnifying
party as above provided, the indemnifying party shall be entitled to
participate in and, to the extent it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense of such action at
its own expense, with counsel chosen by it and reasonably satisfactory to such
indemnified party. The indemnified party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel (other than reasonable costs of
investigation) shall be paid by the indemnified party unless (i) the
indemnifying party agrees to pay the same, (ii) the indemnifying party fails to
assume the defense of such action with counsel reasonably satisfactory to the
indemnified party, or (iii) the indemnified party has been advised by counsel
that one or more legal defenses may be available to the indemnifying party that
may be contrary to the interest of the indemnified party, in which case the
indemnifying party shall be entitled to assume the defense of such action
notwithstanding its obligation to bear fees and expenses of such counsel. No
indemnifying party shall be liable for any settlement entered into without its
consent, which consent may not be unreasonably withheld.
If the indemnification provided for in this Section 9(e) is
unavailable to a party otherwise entitled to be indemnified in respect of any
expenses, losses, claims, damages or liabilities referred to herein, then the
indemnifying party, in lieu of indemnifying such party otherwise entitled to be
indemnified, shall contribute to the amount paid or payable by such party to be
indemnified as a result of such expenses, losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the relative
benefits received by Issuer, the selling Holders and the underwriters from the
offering of the securities and also the relative fault of Issuer, the selling
Holders and the underwriters in connection with the statement or omissions
which results in such expenses, losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The amount paid or payable by
a party as a result of the expenses, losses, claims, damages and liabilities
referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim; provided, however, that in no case shall the
selling Holders be responsible, in the aggregate, for any amount in excess of
the net offering proceeds attributable to its Option Shares included in the
offering. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(g) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. Any
obligation by any Holder to indemnify shall be several and not joint with other
Holders.
In connection with any registration pursuant to Section 9(a) or (b)
above, Issuer and each selling Holder (other than Grantee) shall enter into an
agreement containing the indemnification provisions of this Section 9(e).
(f) Miscellaneous Reporting. Issuer shall comply with all
reporting requirements and will do all such other things as may be necessary to
permit the expeditious sale at any time of any Option Shares by Holder in
accordance with and to the extent permitted by any
14
<PAGE> 15
rule or regulation permitting nonregistered sales of securities promulgated by
the Commission from time to time, including, without limitation, Rule 144A.
Issuer shall at its expense provide the Holder with any information necessary
in connection with the completion and filing of any reports or forms required
to be filed by it under the Securities Act or the Exchange Act, or required
pursuant to any state securities laws or the rules of any stock exchange.
10. Quotation; Listing. If Issuer Common Stock or any other
securities to be acquired upon exercise of the Option are then authorized for
quotation or trading or listing on any securities exchange or national
quotation system, Issuer, upon the request of Holder, will promptly file an
application, if required, to authorize for quotation or trading or listing the
shares of Issuer Common Stock or other securities to be acquired upon exercise
of the Option on such securities exchange or national quotation system and will
use its best efforts to obtain approval, if required, of such quotation or
listing as soon as practicable.
11. Division of Option. Upon the occurrence of a Purchase Event,
this Agreement (and the Option granted hereby) are exchangeable, without
expense, at the option of 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
in the aggregate the same number of shares of Issuer Common Stock purchasable
hereunder. The terms "Agreement" and "Option" as used herein include any other
Agreements and related Options for which this Agreement (and the Option granted
hereby) may be exchanged. Upon receipt by 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, Issuer will execute and deliver a new Agreement of
like tenor and date. Any such new Agreement executed and delivered shall
constitute an additional contractual obligation on the part of Issuer, whether
or not the Agreement so lost, stolen, destroyed or mutilated shall at any time
be enforceable by anyone.
12. Profit Limitation.
(a) Notwithstanding any other provision of this Agreement, in no
event shall the Grantee's Total Profit (as hereinafter defined) exceed
$35,000,000 and, if it otherwise would exceed such amount, the Grantee, at its
sole election, shall either (i) reduce the number of shares of Issuer Common
Stock subject to this Option, (ii) deliver to the Issuer for cancellation
Option Shares previously purchased by Grantee, (iii) pay cash to the Issuer or
(iv) any combination thereof, so that Grantee's actually realized Total Profit
shall not exceed $35,000,000 after taking into account the foregoing actions.
As used herein, the term "Total Profit" shall mean the aggregate amount (before
taxes) of the following: (i) the amount received by Grantee pursuant to
Issuer's repurchase of the Option (or any portion thereof) pursuant to Section
8 hereof, (ii) (x) the amount received by Grantee pursuant to Issuer's
repurchase of the Option Shares pursuant to Section 8 hereof, less (y) the
Grantee's
15
<PAGE> 16
purchase price for such Option Shares, (iii) (x) the net cash amounts received
by Grantee pursuant to the sale of Option Shares (or any other securities into
which such Option Shares are converted or exchanged) to any unaffiliated party,
less (y) the Grantee's purchase price of such Option Shares, (iv) any amounts
received by Grantee on the transfer of the Option (or any portion thereof) to
any unaffiliated party and (v) any equivalent amount with respect to the
Substitute Option.
(b) Notwithstanding any other provision of this Agreement, this
Option may not be exercised for a number of shares as would, as of the date of
exercise, result in a Notional Total Profit (as hereinafter defined) of more
than $35,000,000, provided that nothing in this sentence shall restrict any
exercise of the Option permitted hereby on any subsequent date. As used
herein, the term "Notional Total Profit" with respect to any number of shares
as to which Grantee may propose to exercise this Option shall be the Total
Profit determined as of the date of such proposed exercise assuming that this
Option were exercised on such date for such number of shares and assuming that
such shares, together with all other Option Shares held by Grantee and its
affiliates as of such date, were sold for cash at the closing market price for
the Common Stock as of the close of business on the preceding trading day (less
customary brokerage commissions).
13. Miscellaneous.
(a) Expenses. Except as otherwise provided in Sections 4 and 9,
each of the parties hereto shall bear and pay all costs and expenses incurred
by it or on its behalf in connection with the transactions contemplated
hereunder, including fees and expenses of its own financial consultants,
investment bankers, accountants and counsel.
(b) Waiver and Amendment. Any provision of this Agreement may be
waived at any time by the party that is entitled to the benefits of such
provision. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement
executed by the parties hereto.
(c) Entire Agreement; No Third Party Beneficiaries; Severability.
This Agreement, together with the Plan and the other documents and instruments
referred to herein and therein, between Grantee and Issuer (i) constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter
hereof, and (ii) is not intended to confer upon any person other than the
parties hereto (other than the indemnified parties under Section 9(e) and any
transferee of the Option Shares or any permitted transferee of this Agreement
pursuant to Section 13(h)) any rights or remedies hereunder. If any term,
provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction or a federal or state regulatory agency to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of 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 Option does not permit Holder to
acquire, or does
16
<PAGE> 17
not require Issuer to repurchase, the full number of shares of Issuer Common
Stock as provided in Sections 3 and 8 (as adjusted pursuant to Section 7), it
is the express intention of Issuer to allow Holder to acquire or to require
Issuer to repurchase such lesser number of shares as may be permissible without
any amendment or modification hereof.
(d) Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Maine without regard to
any applicable conflicts of law rules.
(e) Descriptive Headings. The descriptive headings contained
herein are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
(f) Notices. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally, telecopied
(with confirmation) or sent by overnight mail service or mailed by registered
or certified mail (return receipt requested) postage prepaid, to the parties at
the following address (or at such other address for a party as shall be
specified by like notice):
If to Issuer:
Peoples Heritage Financial Group, Inc.
One Portland Square
Portland, Maine 04112-9540
Attn: William J. Ryan
Chairman, President and Chief Executive Officer
Fax: 207-761-8587
With a required copy to:
Elias, Matz, Tiernan & Herrick L.L.P.
734 15th Street, N.W.
Washington, DC 20005
Attn: Gerard L. Hawkins, Esq.
Fax: 202-347-2172
If to Grantee:
CFX Corporation
102 Main Street
Keene, New Hampshire 03431
Attn: Peter J. Baxter
President and Chief Executive Officer
Fax: 603-358-5028
17
<PAGE> 18
With a required copy to:
Arnold & Porter
555 12th Street
Washington, D.C. 20004
Attn: Steven Kaplan, Esq.
Fax: 202-942-5999
(g) Counterparts. This Agreement and any amendments hereto may
be executed in two counterparts, each of which shall be considered one and the
same agreement and shall become effective when both counterparts have been
signed, it being understood that both parties need not sign the same
counterpart.
(h) Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder or under the Option may be assigned by
either of the parties hereto (whether by operation of law or otherwise) without
the prior written consent of the other party, except that Holder may assign its
rights and obligations hereunder in whole or in part in the event of the
occurrence of a Purchase Event prior to an Exercise Termination Event,
provided, however, that until the date 15 days following the date on which the
Federal Reserve Board approves an application by Grantee to acquire the shares
of Issuer Common Stock subject to the Option, Grantee may not assign its rights
under the Option except in (i) a widely dispersed public distribution, (ii) a
private placement in which no one party acquires the right to purchase in
excess of 2% of the voting shares of Issuer, (iii) an assignment to a single
party (e.g., a broker or investment banker) for the purpose of conducting a
widely dispersed public distribution on Grantee's behalf or (iv) any other
manner approved by the Federal Reserve Board. Subject to the preceding
sentence, this Agreement shall be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors and assigns.
(i) Further Assurances. In the event of any exercise of the
Option by Holder, Issuer and Holder shall execute and deliver all other
documents and instruments and take all other action that may be reasonably
necessary in order to consummate the transactions provided for by such
exercise.
(j) Specific Performance. The parties hereto agree that this
Agreement may be enforced by either party through specific performance,
injunctive relief and other equitable relief. Both parties further agree to
waive any requirement for the securing or posting of any bond in connection
with the obtaining of any such equitable relief and that this provision is
without prejudice to any other rights that the parties hereto may have for any
failure to perform this Agreement.
18
<PAGE> 19
IN WITNESS WHEREOF, Issuer and Grantee have caused this Stock Option
Agreement to be signed by their respective officers thereunto duly authorized,
all as of the day and year first written above.
<TABLE>
<S> <C> <C>
Attest: CFX CORPORATION
/s/ E.L. Herbert By: /s/ Peter J. Baxter
- ---------------------------------------- ----------------------------------------
Name: E.L. Herbert Name: Peter J. Baxter
Title: Assistant Secretary Title: President and Chief
Executive Officer
PEOPLES HERITAGE
FINANCIAL GROUP, INC.
Attest:
/s/ Peter J. Verrill By: /s/ William J. Ryan
- ---------------------------------------- --------------------------------------
Name: Peter J. Verrill Name: William J. Ryan
Title: Executive Vice President, Title: Chairman, President
Chief Operating Officer and Chief Executive Officer
and Chief Financial Officer
</TABLE>
19
<PAGE> 1
EXHIBIT 10.3
October 27, 1997
Peoples Heritage Financial Group, Inc.
P.O. Box 9540
One Portland Square
Portland, Maine 04112-9540
Ladies and Gentlemen:
Peoples Heritage Financial Group, Inc. ("PHFG") and CFX Corporation
(the "Company") desire to enter into an Agreement and Plan of Merger, dated as
of October 27, 1997 (the "Agreement"), pursuant to which, subject to the terms
and conditions set forth therein, (a) the Company will merge with and into PHFG
(the "Merger") and (b) each share of Company common stock outstanding
immediately prior to the Merger (other than any dissenting shares under New
Hampshire law and certain other shares) will be converted into the right to
receive .667 of a share of PHFG common stock, plus cash in lieu of any
fractional share interest.
In consideration of the foregoing, the undersigned hereby irrevocably:
(a) Agrees to be present (in person or by proxy) at all
meetings of shareholders of the Company called to vote for approval of the
Agreement and the Merger so that all shares of common stock of the Company then
owned by the undersigned will be counted for the purpose of determining the
presence of a quorum at such meetings and to vote or cause to be voted all such
shares in favor of approval and adoption of the Agreement and the transactions
contemplated thereby (including any amendments or modifications of the terms
thereof approved by the Board of Directors of the Company);
(b) Agrees not to vote or execute any written consent to
rescind or amend in any manner any prior vote or written consent, as a
shareholder of the Company, to approve or adopt the Agreement;
<PAGE> 2
Peoples Heritage Financial Group, Inc.
October 27, 1997
Page 2
(c) Agrees not to offer, sell, transfer, pledge or
otherwise dispose of any shares of common stock of PHFG received in the Merger,
except (i) at such time as a registration statement under the Securities Act of
1933, as amended ("Securities Act") covering sales of such PHFG common stock is
effective and a prospectus is made available under the Securities Act, (ii)
within the limits, and in accordance with the applicable provisions of, Rule
145(d) under the Securities Act, or (iii) in a transaction which, in the
opinion of counsel satisfactory to PHFG or as described in a "no-action" or
interpretive letter from the staff of the Securities and Exchange Commission
("SEC"), is not required to be registered under the Securities Act; and
acknowledges and agrees that PHFG is under no obligation to register the sale,
transfer or other disposition of PHFG common stock by the undersigned or on
behalf of the undersigned, or to take any other action necessary to make an
exemption from registration available;
(d) Notwithstanding the foregoing, agrees not to sell, or
in any other way reduce the risk of the undersigned relative to, any shares of
common stock of the Company or of common stock of PHFG, during the period
commencing thirty days prior to the effective date of the Merger and ending on
the date on which financial results covering at least thirty days of
post-Merger combined operations of PHFG and the Company have been published
within the meaning of Topic 2-E of the Staff Accounting Bulletin Series of the
SEC, provided, however, that excluded from the foregoing undertaking shall be
such sales, pledges, transfers or other dispositions of shares of Company
common stock or shares of PHFG common stock which, in PHFG's sole judgment, are
individually and in the aggregate de minimis within the meaning of Topic 2-E of
the Staff Accounting Bulletin Series of the SEC;
(e) Agrees that neither the Company nor PHFG shall be
bound by any attempted sale or other transfer of any shares of Company common
stock or PHFG common stock, respectively, and the Company's and PHFG's transfer
agents shall be given appropriate stop transfer orders and shall not be
required to register any such attempted sale or other transfer, unless the sale
has been effected in compliance with the terms of this Letter Agreement; and
further agrees that the certificate representing shares of PHFG common stock
owned by the undersigned may be endorsed with a restrictive legend consistent
with the terms of this Letter Agreement;
(f) Acknowledges and agrees that the provisions of
subparagraphs (c), (d) and (e) hereof also apply to shares of PHFG common stock
and Company common stock owned by (i) his or her spouse, (ii) any of his or her
relatives or relatives of his or her spouse occupying his or her home, (iii)
any trust or estate in which he or she, his or her spouse, or any such relative
owns at least a 10% beneficial interest or of which any of them serves as
trustee, executor or in any similar capacity and (iv) any corporation or other
organization
<PAGE> 3
Peoples Heritage Financial Group, Inc.
October 27, 1997
Page 3
in which the undersigned, any affiliate of the undersigned, his or her spouse,
or any such relative owns at least 10% of any class of equity securities or of
the equity interest;
(g) Represents that the undersigned has no plan or
intention to sell, exchange, or otherwise dispose of any shares of common stock
of PHFG prior to expiration of the time period referred to in subparagraph (d)
hereof; and
(h) Represents that the undersigned has the capacity to
enter into this Letter Agreement and that it is a valid and binding obligation
enforceable against the undersigned in accordance with its terms, subject to
bankruptcy, insolvency and other laws affecting creditors' rights and general
equitable principles.
-------------------------
It is understood and agreed that the provisions of subparagraphs (a)
and (b) of this Letter Agreement relate solely to the capacity of the
undersigned as a shareholder or other beneficial owner of shares of Company
common stock and is not in any way intended to affect the exercise by the
undersigned of the undersigned's responsibilities as a director or officer of
the Company. It is further understood and agreed that such subparagraphs of
this Letter Agreement are not in any way intended to affect the exercise by the
undersigned of any fiduciary responsibility which the undersigned may have in
respect of any shares of Company common stock held by the undersigned as of the
date hereof.
-------------------------
This Letter Agreement may be executed in two or more counterparts,
each of which shall be deemed to constitute an original, but all of which
together shall constitute one and the same Letter Agreement.
-------------------------
This Letter Agreement shall terminate concurrently with any
termination of the Agreement in accordance with its terms.
-------------------------
<PAGE> 4
Peoples Heritage Financial Group, Inc.
October 27, 1997
Page 4
The undersigned intends to be legally bound hereby.
Sincerely,
<PAGE> 1
EXHIBIT 10.4
October 27, 1997
CFX Corporation
102 Main Street
Keene, New Hampshire 03431
Ladies and Gentlemen:
Peoples Heritage Financial Group, Inc. ("PHFG") and CFX Corporation
(the "Company") desire to enter into an Agreement and Plan of Merger, dated as
of October 27, 1997 (the "Agreement"), pursuant to which, subject to the terms
and conditions set forth therein, (a) the Company will merge with and into PHFG
(the "Merger") and (b) each share of Company common stock outstanding
immediately prior to the Merger (other than any dissenting shares under New
Hampshire law and certain other shares) will be converted into the right to
receive .667 of a share of PHFG common stock, plus cash in lieu of any
fractional share interest.
In consideration of the foregoing, the undersigned hereby irrevocably:
(a) Agrees to be present (in person or by proxy) at all
meetings of shareholders of PHFG called to vote for approval of the Agreement
and the Merger so that all shares of common stock of PHFG then owned by the
undersigned will be counted for the purpose of determining the presence of a
quorum at such meetings and to vote or cause to be voted all such shares in
favor of approval and adoption of the Agreement and the transactions
contemplated thereby (including any amendments or modifications of the terms
thereof approved by the Board of Directors of PHFG);
(b) Agrees not to vote or execute any written consent to
rescind or amend in any manner any prior vote or written consent, as a
shareholder of PHFG, to approve or adopt the Agreement;
<PAGE> 2
CFX Corporation
October 27, 1997
Page 2
(c) Agrees not to sell, or in any other way reduce the
risk of the undersigned relative to, any shares of common stock of the Company
or of common stock of PHFG, during the period commencing thirty days prior to
the effective date of the Merger and ending on the date on which financial
results covering at least thirty days of post-Merger combined operations of
PHFG and the Company have been published within the meaning of Topic 2-E of the
Staff Accounting Bulletin Series of the Securities and Exchange Commission
("SEC"), provided, however, that excluded from the foregoing undertaking shall
be such sales, pledges, transfers or other dispositions of shares of Company
common stock or shares of PHFG common stock which, in PHFG's sole judgment, are
individually and in the aggregate de minimis within the meaning of Topic 2-E of
the Staff Accounting Bulletin Series of the SEC;
(d) Agrees that neither the Company nor PHFG shall be
bound by any attempted sale or other transfer of any shares of Company common
stock or PHFG common stock, respectively, and the Company's and PHFG's transfer
agents shall be given appropriate stop transfer orders and shall not be
required to register any such attempted sale or other transfer, unless the sale
has been effected in compliance with the terms of this Letter Agreement;
(e) Acknowledges and agrees that the provisions of
subparagraphs (c) and (d) hereof apply to shares of PHFG common stock and
Company common stock owned by (i) his or her spouse, (ii) any of his or her
relatives or relatives of his or her spouse occupying his or her home, (iii)
any trust or estate in which he or she, his or her spouse, or any such relative
owns at least a 10% beneficial interest or of which any of them serves as
trustee, executor or in any similar capacity and (iv) any corporation or other
organization in which the undersigned, any affiliate of the undersigned, his or
her spouse, or any such relative owns at least 10% of any class of equity
securities or of the equity interest;
(f) Represents that the undersigned has no plan or
intention to sell, exchange, or otherwise dispose of any shares of common stock
of PHFG prior to expiration of the time period referred to in subparagraph (c)
hereof; and
(g) Represents that the undersigned has the capacity to
enter into this Letter Agreement and that it is a valid and binding obligation
enforceable against the undersigned in accordance with its terms, subject to
bankruptcy, insolvency and other laws affecting creditors' rights and general
equitable principles.
-------------------------
It is understood and agreed that the provisions of subparagraphs (a)
and (b) of this Letter Agreement relate solely to the capacity of the
undersigned as a shareholder or
<PAGE> 3
CFX Corporation
October 27, 1997
Page 3
other beneficial owner of shares of PHFG common stock and is not in any way
intended to affect the exercise by the undersigned of the undersigned's
responsibilities as a director or officer of PHFG. It is further understood
and agreed that such subparagraphs of this Letter Agreement are not in any way
intended to affect the exercise by the undersigned of any fiduciary
responsibility which the undersigned may have in respect of any shares of PHFG
common stock held by the undersigned as of the date hereof.
-------------------------
This Letter Agreement may be executed in two or more counterparts,
each of which shall be deemed to constitute an original, but all of which
together shall constitute one and the same Letter Agreement.
-------------------------
This Letter Agreement shall terminate concurrently with any
termination of the Agreement in accordance with its terms.
-------------------------
The undersigned intends to be legally bound hereby.
Sincerely,
