Exhibit 2.2
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
This Amendment No. 1 to the Agreement and Plan of Merger, dated August 25,
1997 (the "Merger Agreement"), is made by and between United Financial Corp., a
Minnesota corporation ("United"), and Heritage Bancorporation, a Montana
corporation ("Heritage"), effective as of the 25th day of August, 1997.
Capitalized terms not otherwise defined herein shall have the meanings ascribed
to them in the Merger Agreement.
WHEREAS, the Parties executed the Merger Agreement with the intention that
the United Shares to be received by shareholders of Heritage would be registered
on a Registration Statement on Form S-4; and
WHEREAS, the Parties have decided to complete the issuance of United Shares
as a private transaction and to grant shareholders of Heritage certain demand
registration rights for future registration of such United Shares.
NOW, THEREFORE, IN CONSIDERATION of the premises and mutual promises herein
made, and in consideration of the representations, warranties and covenants
herein contained, the Parties agree as follows:
I. A new Section 2(d)(xi) is hereby added to the Merger Agreement as
follows:
(xi) UNITED SHARES TO BE RESTRICTED SECURITIES. The United Shares
issued to the Heritage stockholders in the Merger will be issued pursuant
to an exemption from registration under Section 4(2) of the Securities Act
and pursuant to Rule 506 of Regulation D promulgated under the Securities
Act. Each certificate representing the United Shares shall be endorsed
with substantially the following legend:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER APPLICABLE STATE LAWS
AND MAY NOT BE SOLD, TRANSFERRED, OR PLEDGED IN THE ABSENCE OF SUCH
REGISTRATION UNLESS PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT OF 1933 AND APPLICABLE STATE
SECURITIES LAWS. THE COMPANY RESERVES THE RIGHT TO REQUIRE AN OPINION OF
COUNSEL SATISFACTORY TO IT BEFORE EFFECTING ANY TRANSFER OF THE SHARES.
II. Section 5(e) is hereby amended and restated to read as follows:
(e) REGISTRATION OF UNITED SHARES FOR RESALE. United will register
for resale the United Shares to be issued in the Merger on the following terms.
United agrees that, if after the Effective Time it shall receive a written
request from the holders of an aggregate of more than 50% of the United Shares
issued to stockholders of Heritage in the Merger and not sold under a previous
registration statement, United will use its best efforts to file a registration
statement on Form S-3 with the Securities and Exchange Commission ("SEC")
covering the United Shares issued in the Merger. United shall be obligated to
file only two registrations statements under this Section 5(e), and this
obligation shall terminate on the second anniversary of the Effective Time (the
"Second Anniversary"). United agrees to use its best efforts to file any such
registration statement within 30 days of receipt of such request, and to file
all other documents and to take all other steps necessary and appropriate in
order to have such registration statement declared effective as quickly as
possible. United further agrees that once any such registration statement has
been declared effective, United will use its best efforts to file such
post-effective amendments to such registration statement as are necessary to
cause such registration statement to remain effective for a period of not less
than 180 days or such shorter time as is necessary to sell such shares,
commencing on the effective date of the registration statement, provided that
United will not be required to maintain the effectiveness of any
registration statement beyond the Second Anniversary. United's obligation to
file a registration statement shall, in all cases, be subject to the following
conditions and provisions:
(i) In the event United does not meet the requirements for use of
Form S-3 in the time period specified in the first paragraph of this
section, the time for filing any registration statement shall be extended
until United is eligible to use a Form S-3 registration statement;
provided, that United will use its best efforts to qualify for use of a
Form S-3 registration statement in the time period specified in the first
paragraph of this section and to maintain such qualification.
(ii) United will use its best efforts to register or qualify the
United Shares included in such registration statement under the securities
laws of such states and other jurisdictions as the former Heritage
stockholders reasonably request; provided, that United shall not for any
such purpose be required to qualify generally to transact business as a
foreign corporation in any jurisdiction where it is not so qualified or to
consent to general service of process in any such jurisdiction.
(iii) With respect to any such registration statement, United shall
bear the expense of any registration and qualification fees, state blue sky
fees, fees of United outside counsel and independent public accountants,
printing costs and the salaries and expenses of its employees, and all
other costs of preparing and filing the registration statement. Heritage's
stockholders shall pay all attorneys fees for their counsel incurred as a
part of such registration and any other costs related to the sale of the
United Shares, including commissions. United agrees to furnish the former
Heritage stockholders with such number of prospectuses or other documents
incident to any such registration as may from time to time be reasonably
requested.
(iv) United shall be entitled to postpone for a reasonable period of
time the filing of a registration statement otherwise required to be
prepared and filed by it pursuant to this section if United determines, in
its reasonable judgment, that such registration and offering would
interfere with any financing, acquisition, corporate reorganization or
other material transaction involving United or any of its affiliates or
would require premature disclosure thereof and promptly gives the holders
(or a representative) of such shares requesting registration thereof
pursuant to this section written notice of such determination, containing a
general statement of the reasons for such postponement and an approximation
of the anticipated delay. If United shall so postpone the filing of a
registration statement, such holders requesting registration thereof
pursuant to this section shall have the right to withdraw the request for
registration by giving written notice to United within 30 days after
receipt of the notice of delay and, in the event of such withdrawal, such
request shall not be counted for purposes of the requests for registration
to which such holders are entitled pursuant to this section.
III. Section 6(a)(viii) is hereby amended and restated to read as follows:
(viii) Each of the Heritage stockholders shall have provided United
with a letter of investment intent including such representations as are
reasonably requested by United to make available an appropriate exemption
from registration under the Securities Act for the United Shares to be
issued in the Merger.
IV. Except as otherwise described in this Amendment No. 1, references in
the Merger Agreement to the "Registration Statement" or the "Prospectus" shall
be deemed to be references to the Joint Disclosure Document.
V. Sections 5(c)(i) and 6(b)(ii) are hereby deleted.
IN WITNESS HEREOF, the Parties hereto have executed this Agreement on the
date second above written.
HERITAGE BANCORPORATION
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By: /s/ Xxxx X. Xxxxx
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Its: Treasurer
UNITED FINANCIAL CORP.
By: /s/ Xxxxx X. Xxxxxxx
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Its: Chairman
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