Exhibit 2.2
SHAREHOLDER AGREEMENT
SHAREHOLDER AGREEMENT (the "Agreement"), dated as of January
27, 2003, among __________________, a shareholder ("Shareholder") of The
CommonWealth Bank, a Virginia-chartered commercial bank ("CommonWealth Bank "),
First Community Bank, N.A., a national bank ("First Community Bank"), and First
Community Bancshares, Inc., a Nevada corporation ("Parent"). All terms used
herein and not defined herein shall have the meanings assigned thereto in the
Merger Agreement (defined below).
WHEREAS, Parent, First Community Bank and CommonWealth Bank
are entering into an Agreement and Plan of Merger, dated as of the date hereof
(the "Merger Agreement"), pursuant to which CommonWealth Bank will merge with
and into First Community Bank on the terms and conditions set forth therein (the
"Merger") and, in connection therewith, outstanding shares of CommonWealth Bank
Common Stock will be converted into shares of Parent Common Stock and/or cash in
the manner set forth therein; and
WHEREAS, Shareholder owns the shares of CommonWealth Bank
Common Stock identified on Exhibit I hereto (such shares, together with all
shares of CommonWealth Bank Common Stock subsequently acquired by Shareholder
during the term of this Agreement, being referred to as the "Shares"); and
WHEREAS, in order to induce Parent and First Community Bank to
enter into the Merger Agreement, Shareholder, solely in such Shareholder's
capacity as a shareholder of CommonWealth Bank and not in any other capacity,
has agreed to enter into and perform this Agreement.
NOW, THEREFORE, for good and valuable consideration, the
receipt, sufficiency and adequacy of which are hereby acknowledged, the parties
hereto agree as follows:
1. Agreement to Vote Shares. Shareholder agrees that at any meeting of the
stockholders of CommonWealth Bank, or in connection with any written consent of
the stockholders of CommonWealth Bank, Shareholder shall:
(i) appear at each such meeting or otherwise cause the Shares to be
counted as present thereat for purposes of calculating a quorum; and
(ii) vote (or cause to be voted), in person or by proxy, or deliver a
written consent (or cause a consent to be delivered) covering, all the Shares
(whether acquired heretofore or hereafter) that are beneficially owned by
Shareholder or as to which Shareholder has, directly or indirectly, the right to
vote or direct the voting, (x) in favor of adoption and approval of the Merger
Agreement and the Merger; (y) against any action or agreement that would result
in a breach of any covenant, representation or warranty or any other obligation
or agreement of CommonWealth Bank contained in the Merger Agreement or of
Shareholder contained in this Agreement; and (z) against any Acquisition
Proposal or any other action, agreement or transaction that is intended, or
could reasonably be expected, to materially impede, interfere or be inconsistent
with, delay, postpone, discourage or materially and adversely affect
consummation of the Merger or this Agreement.
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2. No Transfers. Prior to the CommonWealth Bank Meeting, Shareholder agrees
not to, directly or indirectly, sell transfer, pledge, assign or otherwise
dispose of, or enter into any contract option, commitment or other arrangement
or understanding with respect to the sale, transfer, pledge, assignment or other
disposition of, any of the Shares. In the case of any transfer by operation of
law, this Agreement shall be binding upon and inure to the transferee(s). Any
transfer or other disposition in violation of the terms of this Section 2 shall
be null and void.
3. Representations and Warranties of Shareholder. Shareholder represents
and warrants to and agrees with Parent and First Community Bank as follows:
A. Capacity. Shareholder has all requisite capacity and authority to
enter into and perform his, her or its obligations under this Agreement.
B. Binding Agreement. This Agreement constitutes the valid and legally
binding obligation of Shareholder, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
C. Non-Contravention. The execution and delivery of this Agreement by
Shareholder does not, and the performance by Shareholder of his, her or its
obligations hereunder and the consummation by Shareholder of the transactions
contemplated hereby will not, violate or conflict with, or constitute a default
under, any agreement, instrument, contract or other obligation or any order,
arbitration award, judgment or decree to which Shareholder is a party or by
which Shareholder is bound, or any statute, rule or regulation to which
Shareholder is subject or, in the event that Shareholder is a corporation,
partnership, trust or other entity, any charter, bylaw or other organizational
document of Shareholder.
D. Ownership of Shares. Shareholder has good title to all of the Shares
as of the date hereof, and, except as set forth on Exhibit I hereto, the Shares
are so owned free and clear of any liens, security interests, charges or other
encumbrances.
4. Specific Performance and Remedies. Shareholder acknowledges that it will
be impossible to measure in money the damage to Parent and First Community Bank
if Shareholder fails to comply with the obligations imposed by this Agreement
and that, in the event of any such failure, Parent and First Community Bank will
not have an adequate remedy at law or in equity. Accordingly, Shareholder agrees
that injunctive relief or other equitable remedy, in addition to remedies at law
or in damages, is the appropriate remedy for any such failure and will not
oppose the granting of such relief on the basis that Parent and First Community
Bank may have an adequate remedy at law. Shareholder agrees that Shareholder
will not seek, and agrees to waive any requirement for, the securing or posting
of a bond in connection with Parent's or First Community Bank's seeking or
obtaining such equitable relief. In addition, after discussing the matter with
Shareholder, Parent and First Community Bank shall have the right to inform any
third party that Parent and First Community Bank reasonably believe to be, or to
be contemplating, participating with Shareholder or receiving from Shareholder
assistance in violation of this Agreement, of the terms of this Agreement and of
the rights of Parent and First Community Bank hereunder, and that participation
by any such persons with Shareholder in activities in violation of Shareholder's
agreement with Parent and First Community Bank set
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forth in this Agreement may give rise to claims by Parent and First Community
Bank against such third party.
5. Term of Agreement; Termination.
A. The term of this Agreement shall commence on the date hereof.
B. This Agreement shall terminate upon the date, if any, of termination
of the Merger Agreement in accordance with its terms. Upon such termination, no
party shall have any further obligations or liabilities hereunder; provided,
however, such termination shall not relieve any party from liability for any
willful breach of this Agreement prior to such termination.
C. If the Merger Agreement is not terminated in accordance with its
terms, this Agreement (except for the provisions of Sections 3 and 8, which
shall survive the Effective Time) shall terminate upon the Effective Time. Upon
such termination, no party shall have any further obligations or liabilities
under this Agreement; provided, however, such termination shall not relieve any
party from liability for any willful breach of such Section prior to such
termination.
6. Entire Agreement. This Agreement supersedes all prior agreements,
written or oral, among the parties hereto with respect to the subject matter
hereof and contains the entire agreement among the parties with respect to the
subject matter hereof. This Agreement may not be amended, supplemented or
modified, and no provisions hereof may be modified or waived, except by an
instrument in writing signed by each party hereto. No waiver of any provisions
hereof by any party shall be deemed a waiver of any other provisions hereof by
any such party, nor shall any such waiver be deemed a continuing waiver of any
provision hereof by such party.
7. Notices. All notices, requests, claims, demands or other communications
hereunder shall be in writing and shall be deemed given when delivered
personally, upon receipt of a transmission confirmation if sent by telecopy or
like transmission and on the next business day when sent by a reputable
overnight courier service to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
If to Parent or First Community Bank:
First Community Bancshares, Inc.
Xxx Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, President and
Chief Executive Officer
Fax: (000) 000-0000
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With a copy to:
Xxxxxx Xxxx & Xxxxxx LLP
Tysons Corner
0000 Xxxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Xxxxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
If to Shareholder:
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With a copy to:
XxXxxxx Xxxx, A Professional Corporation
Eleventh Floor
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
8. Miscellaneous.
A. Severability. If any provision of this Agreement or the application
of such provision to any person or circumstances shall be held invalid or
unenforceable by a court of competent jurisdiction, such provision or
application shall be unenforceable only to the extent of such invalidity or
unenforceability, and the remainder of the provision held invalid or
unenforceable and the application of such provision to persons or circumstances,
other than the party as to which it is held invalid, and the remainder of this
Agreement, shall not be affected.
B. Capacity. The covenants contained herein shall apply to Shareholder
solely in his or her capacity as a shareholder of CommonWealth Bank, and no
covenant contained herein shall apply to Shareholder in his or her capacity as a
director, officer or employee of CommonWealth Bank or in any other capacity.
Nothing contained in this Agreement shall be deemed to apply to, or limit in any
manner, the obligations of the Shareholder to comply with his or her fiduciary
duties as a director, officer or employee of CommonWealth Bank.
C. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
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D. Headings. All Section headings herein are for convenience of
reference only and are not part of this Agreement, and no construction or
reference shall be derived therefrom.
E. Choice of Law. This Agreement shall be deemed a contract made under,
and for all purposes shall be construed in accordance with, the laws of the
State of Nevada, without reference to its conflicts of law principles.
9. Attorney's Fees. The prevailing party or parties in any litigation,
arbitration, mediation, bankruptcy, insolvency or other proceeding
("Proceeding") relating to the enforcement or interpretation of this Agreement
may recover from the unsuccessful party or parties all fees and disbursements of
counsel (including expert witness and other consultants' fees and costs)
relating to or arising out of (a) the Proceeding (whether or not the Proceeding
proceeds to judgment), and (b) any post-judgment or post-award proceeding
including, without limitation, one to enforce or collect any judgment or award
resulting from the Proceeding. All such judgments and awards shall contain a
specific provision for the recovery of all such subsequently incurred costs,
expenses, and fees and disbursements of counsel.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
FIRST COMMUNITY BANCSHARES, INC.
By: ____________________________
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
FIRST COMMUNITY BANK, NATIONAL ASSOCIATION
By: ____________________________
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
SHAREHOLDER
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(Signature)
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