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EXHIBIT 2.1
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AGREEMENT AND PLAN OF MERGER
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THIS AGREEMENT AND PLAN OF MERGER (hereinafter called
"Agreement"), made and entered into as of the 30th day of
September, 1997, by and between WESBANCO, INC., a West Virginia
corporation, with its principal place of business located at Bank
Plaza, Wheeling, West Virginia (hereinafter called "Wesbanco"),
party of the first part, and COMMERCIAL BANCSHARES, INCORPORATED,
a West Virginia corporation, with its principal place of business
located at 000 Xxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxx Xxxxxxxx, 00000,
(hereinafter called "Commercial") party of the second part, and
CBI HOLDING COMPANY (hereinafter called "CBI"), a corporation to
be formed under the laws of the State of West Virginia by
Wesbanco as its wholly-owned subsidiary solely for the purpose of
effecting the acquisition contemplated by this Agreement, party
of the third part, (effective as of its organization and
execution of this Agreement).
WHEREAS, Wesbanco is a West Virginia corporation duly
organized and validly existing under the laws of the State of
West Virginia, and is a registered bank holding company under the
Bank Holding Company Act of 1956, as amended, and
WHEREAS, Commercial is a West Virginia corporation duly
organized and validly existing under the laws of the State of
West Virginia, and is a registered bank holding company under the
Bank Holding Company Act of 1956, as amended, which owns ten
subsidiaries, namely, Commercial Banking and Trust Company,
Xxxxxxx County Bank, Farmers & Merchants Bank of Xxxxxxx County,
The Dime Bank, Union Bank of Tyler County, The Community Bank,
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Bank of Xxxxx City, Hometown Finance Company, Hometown Insurance
Agency, Inc. and CommBanc Investments, Inc. (hereinafter
collectively called "Subsidiaries"), and
WHEREAS, CBI will be a corporation duly organized and
validly existing under the laws of the State of West Virginia
which corporation shall be organized to effect the terms and
conditions of this Agreement, and
WHEREAS, the Board of Directors of Wesbanco, by a majority
vote of all the members thereof, has approved this Agreement and
has authorized the execution hereof in counterparts and subject
to the terms hereof will direct that it be submitted to its
shareholders; the Board of Directors of CBI shall, prior to the
execution hereof by CBI, have by a majority vote of all of the
members and shareholders thereof, approved this Agreement and
authorized the execution hereof in counterparts, all upon the
issuance of CBI's charter as hereinafter provided, and
WHEREAS, Wesbanco desires to acquire Commercial and the
Board of Directors of Commercial has determined that, subject to
all of the conditions of this Agreement, including but not
limited to the requirement that certain tax rulings and fairness
opinions be obtained, it would be in the best interests of
Commercial and its shareholders for Commercial to enter into this
Agreement to become affiliated with Wesbanco, and
WHEREAS, it is proposed that Wesbanco, Commercial and CBI
enter into this Agreement whereby Commercial will merge with and
into CBI and the outstanding shares of common stock of Commercial
("Commercial Common Stock") will be converted into shares of
common stock of Wesbanco ("Wesbanco Common Stock");
NOW, THEREFORE, for and in consideration of the mutual
promises and covenants hereinafter set forth, and in accordance
with the provisions of applicable law, and intending to be
legally bound hereby, the parties hereto do hereby agree as
follows:
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SECTION 1
CBI
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1.1 Formation. Wesbanco shall promptly cause CBI to be
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duly organized as a business corporation under the laws of the
State of West Virginia. CBI will be wholly-owned by Wesbanco at
all times through the closing of the transactions contemplated by
this Agreement.
1.2 Conduct of Business. Wesbanco shall not permit CBI to
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conduct any business operations other than such activities which
are necessary to consummate the merger contemplated in the
Agreement (the "Merger").
1.3 Execution of Agreement. Promptly after the
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organization of CBI, Wesbanco shall cause CBI to take all
necessary and proper action to ratify, approve, adopt and execute
the Agreement and to undertake the performance of all of the
terms and conditions of the Agreement to be performed by CBI.
1.4 Voting of CBI Shares. Promptly after the organization
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of CBI, Wesbanco, as sole shareholder of CBI, shall vote all of
the shares of CBI in favor of the Merger.
SECTION 2
THE MERGER
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2.1 The Merger. At the Effective Time (as defined in
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Section 2.5), subject to the provisions of this Agreement, CBI
shall merge with Commercial (the "Merger"), under the charter of
CBI. CBI shall be the surviving corporation (hereinafter
sometimes called the "Surviving Corporation").
2.2 Effect of Merger. At the Effective Time, the corporate
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existence of CBI, with all of its purposes, powers and objects,
and all of its rights, assets, liabilities and obligations, shall
continue unaffected and unimpaired by the Merger, and CBI as the
Surviving Corporation shall
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continue to be governed by the laws of the State of West Virginia.
CBI as the Surviving Corporation shall also succeed to all of the
rights, assets, liabilities and obligations of Commercial in accordance
with the West Virginia Corporation Act ("WVCA"). Upon the Effective
Date, (as defined in Section 11.5 hereof), the separate existence and
corporate organization of Commercial shall cease.
2.3 Closing. Wesbanco, Commercial and CBI will jointly
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request the Secretary of State of West Virginia to issue a
Certificate of Merger on the date of the closing described in
Section 11.4 hereof (the "Closing" and the "Closing Date").
2.4 Commercial's Obligations. Commercial shall at any
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time, or from time to time, as and when requested by the
Surviving Corporation, or by its successors and assigns, execute
and deliver, or cause to be executed and delivered in its name by
its last acting officers, or by the corresponding officers of the
Surviving Corporation, all such conveyances, assignments,
transfers, deeds, or other instruments, and shall take or cause
to be taken such further or other action as the Surviving
Corporation, its successors or assigns, may deem necessary or
desirable in order to evidence the transfer, vesting or
devolution of any property, right, privilege or franchise or to
vest or perfect in or confirm to the Surviving Corporation, its
successors and assigns, title to and possession of all the
property, rights, privileges, powers, immunities, franchises and
interests referred to in this Agreement and otherwise to carry
out the intent and purposes hereof, all at the expense of the
Surviving Corporation.
2.5 Articles of Merger. Subject to the terms and
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conditions herein provided, Articles of Merger, incorporating
this Agreement, shall be executed to comply with the applicable
filing requirements of the WVCA at the Closing and on the Closing
Date. On the Closing Date, such Articles of Merger shall be
filed with the Secretary of State of the State of West Virginia, who
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will duly issue a Certificate of Merger. The Surviving
Corporation shall record said Certificate of Merger in the office
of the Clerk of the County Commission of Wood County. The Merger
shall become effective on the date (the "Effective Date") and at
the time (which time is hereinafter called the "Effective Time")
when such Certificate of Merger is issued by the Secretary of
State.
SECTION 3
ARTICLES OF INCORPORATION;
BYLAWS; BOARD OF DIRECTORS AND OFFICERS
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3.1 CBI Corporation. The Articles of Incorporation of CBI,
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as organized, shall constitute the Articles of Incorporation of
the Surviving Corporation. The Bylaws of CBI as in effect on the
Effective Date shall constitute the Bylaws of the Surviving
Corporation. The directors and officers of CBI on the Effective
Date shall become the directors and officers of the Surviving
Corporation. Any vacancy in the Board of Directors or officers
may be filled in the manner provided in the Bylaws of the
Surviving Corporation. The directors and officers shall hold
office as prescribed in the Bylaws.
3.2 Subsidiaries of Commercial. The Articles of
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Incorporation of the Subsidiaries and the Bylaws of the
Subsidiaries, as in effect on the Effective Date, shall continue
respectively as the Articles of Incorporation and Bylaws of the
Subsidiaries until the same shall thereafter be altered, amended
or repealed in accordance with law, such Articles of
Incorporation or said Bylaws. The directors and officers of the
Subsidiaries on the Effective Date shall continue as the
directors and officers of the Subsidiaries after the Merger,
except to the extent that such Subsidiaries may be restructured
or consolidated on or after the Merger, and shall hold office as
prescribed in the Bylaws of such Subsidiaries and applicable law,
until their successors shall have been elected and shall qualify.
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3.3 Wesbanco Directors. Wesbanco covenants and agrees that
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as of the Effective Date it will appoint as directors of Wesbanco
Xxxxxxx X. Xxxxxxx, Xx., Xxxxxx X. Xxxxx, Xxxxx X. Xxxxxxxxxx and
Xxxxx X. Xxxxxxx, or, if one or more of them should be unwilling
or unable to serve, a person or persons to be designated by
Commercial ("Substituted Person"), and acceptable to Wesbanco.
Such individuals shall serve until the next annual meeting of
shareholders, and Wesbanco shall include such persons on the list
of nominees for the position of director presented by the
Wesbanco Board of Directors and for which said Board shall
solicit proxies at its next annual meeting of shareholders, with
such persons to be nominated for such terms as are available
under Wesbanco's Bylaws, except that such Directors shall be
elected to separate classes of Wesbanco's classified Board of
Directors to the extent feasible; and provided that in the event
that one or more of the Commercial nominees are nominated as set
forth above by the Wesbanco Board of Directors for less than full
three year terms, upon the expiration of any such lesser term,
Wesbanco covenants and agrees that it will again include such
person or persons on the list of nominees for the position of
Wesbanco director presented by its Board of Directors for a full
three year term and shall solicit proxies for said person or
persons for the annual meeting or meetings of shareholders at
which such election or elections shall be held.
Wesbanco also covenants and agrees that as of the Effective Date
it will appoint Xxxxxxx X. Xxxxxxx, Xx. as a member of the
Executive Committee of the Board of Directors of Wesbanco,
and covenants and agrees that it will continue to appoint or elect
Xxxxxxx X. Xxxxxxx, Xx. (or the designated Substituted Person for
the said Xxxxxxx X. Xxxxxxx, Xx. if he should be unable to serve)
for so long as he serves as a Director of Wesbanco pursuant to
the requirements of this Section 3.3.
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SECTION 4
SHAREHOLDER APPROVALS
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4.1 Commercial Shareholders' Meeting. Subject to the
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receipt by Commercial of the fairness opinion described in
Section 11.3(c) hereof, Commercial shall submit the Agreement to
its shareholders in accordance with the WVCA at a meeting duly
called, properly noticed and held at the earliest practicable
date (considering the regulatory approvals required to be
obtained) after the receipt of such opinion. In connection with
such meeting, Commercial shall send to its shareholders the Proxy
Statement referred to in Section 13.1 hereof. Subject to the
fiduciary duties of the Board of Directors of Commercial to
Commercial and its shareholders, the Board of Directors of
Commercial shall recommend a vote in favor of the Merger and
shall use its best efforts to obtain at such meeting the
affirmative vote of the Commercial shareholders required to
effectuate the transactions contemplated by the Agreement.
4.2 CBI Shareholder Meeting or Consent. CBI shall promptly
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submit the Agreement to its shareholder, Wesbanco, for approval
in accordance with the WVCA.
4.3 Wesbanco Shareholder Meeting. Wesbanco shall submit
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the Agreement to its shareholders in accordance with the WVCA at
a meeting duly called, properly noticed and held at the earliest
practicable date (considering the regulatory approvals required
to be obtained). In connection with such meeting, Wesbanco shall
send to its shareholders the Proxy Statement referred to in
Section 13.1 hereof. Subject to the fiduciary duties of the
Board of Directors of Wesbanco to Wesbanco and its shareholders,
the Board of Directors of Wesbanco shall recommend a vote in
favor of the Merger and shall use its best efforts to obtain at
such meeting the affirmative vote of the Wesbanco shareholders
required to effectuate the transactions contemplated by the Agreement.
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SECTION 5
CONVERSION OF SHARES
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5.1 Conversion, Ratio and Option. The manner of converting
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or exchanging the shares of CBI and Commercial shall be as
follows:
(a) Each share of Commercial Common Stock
issued and outstanding immediately prior to the
Effective Time, except shares of Commercial Common
Stock issued and held in treasury of Commercial or
beneficially owned by CBI or Wesbanco, other than
in a fiduciary capacity by Wesbanco for others, and
shares as to which dissenters' rights are exercised
pursuant to X.Xx. Code Annot. Section 31-1-122,
shall by virtue of the Merger and at the Effective
Time of the Merger:
(i) Be exchanged for and become,
without action on the part of the holder
thereof, 2.85 shares of the Common Stock
of Wesbanco, having equal rights and
privileges with respect to all other
Common Stock of Wesbanco issued and
outstanding as of the Effective Time of
the Merger.
(ii) No fractional shares of
Wesbanco Common Stock will be issued in
connection with the Merger. In lieu
thereof each stockholder of Commercial
otherwise entitled to a fractional share
of Wesbanco will receive cash therefore
in an amount based on a value of $28.37
per whole share of Wesbanco stock, at
the time of the
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exchange, or at the election of such holder,
shall be entitled to purchase the remaining
fraction of such share from Wesbanco based on
such price.
(iii) In the event of any
change in Wesbanco Common Stock by
reason of stock dividends, split-ups,
mergers, recapitalizations,
combinations, exchanges of shares or the
like, the type and number of shares to
be issued pursuant to Section 5.1(a)(i)
and (ii) hereof shall be adjusted
proportionately.
(b) Each share of common stock of CBI issued
and outstanding immediately prior to the Effective
Time shall, at the Effective Time, become one
issued and outstanding share of common stock of the
Surviving Corporation.
5.2 Shares Owned by Commercial, Wesbanco or CBI. Each
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share of Commercial Common Stock issued and held in the treasury
of Commercial or beneficially owned by Wesbanco or CBI, other
than in a fiduciary capacity, at the Effective Time of the Merger
shall be canceled and retired, and no shares of stock or the
securities of Wesbanco shall be issuable with respect thereto.
5.3 Exchange for Stock. On and after the Effective Date of
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the Merger, each holder of Commercial Common Stock, upon
presentation and surrender of a certificate or certificates
therefore to the Exchange Agent (Wesbanco Bank Wheeling), shall
be entitled to receive in exchange therefore a certificate or
certificates representing the number of shares of Wesbanco Common
Stock to which he or she is entitled as provided herein, and
payment in cash for any
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fractional share of common stock which he is entitled to
receive, without interest, should such shareholder not
elect to purchase the remaining fraction of such share of
common stock at the price above set forth. Until so presented
and surrendered in exchange for a certificate representing
Wesbanco Common Stock, each certificate which represented issued
and outstanding shares of Commercial Common Stock immediately
prior to the Effective Time shall be deemed for all purposes to
evidence ownership of the number of shares of Wesbanco Common
Stock into which such shares of stock have been converted
pursuant to the Merger. Until surrender of such certificates
in exchange for certificates representing the converted
stock, the holder thereof shall not receive any dividend or other
distribution payable to holders of shares of such stock;
provided, however, that upon surrender of such certificates
representing such converted stock in exchange for certificates
representing the stock into which it has been converted, there
shall be paid to the record holder of the certificate
representing Wesbanco Common Stock issued upon such surrender,
the amount of dividends or other distributions (without interest)
which theretofore became payable with respect to the number of
shares of such stock represented by the certificate or
certificates to be issued upon such surrender, together with
payment of cash for any fractional share to which such holder is
entitled, as above set forth.
5.4 Closing of Stock Transfer Books. On the Effective
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Date, the stock transfer books of Commercial shall be closed, and
no shares of Common Stock or Preferred Stock of Commercial
outstanding the day prior to the Effective Date shall thereafter
be transferred.
5.5 Directors' Qualifying Shares. Immediately upon
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completion of the conversion provided for above, the continuing
Directors of Commercial or its Subsidiaries who are elected to
serve on the board of directors of one or more banking
Subsidiaries of Wesbanco shall maintain at least the minimum
number of shares of common stock of Wesbanco as are required
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to be held as directors' qualifying shares under applicable law for
continued membership on the Board of Directors of any of the
Wesbanco Subsidiaries.
SECTION 6
DISSENTERS RIGHTS
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6.1 Subject to the rights of Wesbanco and Commercial, as
permitted by Section 11.1(i) of the Agreement, to terminate the
Agreement and abandon the Merger in the event that the number of
Objecting Shares (as hereinafter defined) shall exceed 10% of the
shares of Commercial issued and outstanding on the date of the
shareholders' meeting described in Sections 4.1 and 13.1 of this
Agreement and entitled to vote on this Agreement (hereinafter
"Voting Shares"), the rights and remedies of a dissenting
shareholder under the WVCA shall be afforded to any shareholder
of Commercial who objects to the Merger in a timely manner in
accordance with the WVCA, and who takes the necessary steps in a
timely manner in accordance with the WVCA to perfect such
shareholder's rights as a dissenting shareholder (such
shareholder being hereafter referred to as a "Dissenting
Shareholder"). The Surviving Corporation will make such payments
as are required to be made to Dissenting Shareholders in the
exercise of such rights. The term "Objecting Shares" shall mean
the shares of those holders of Commercial Common Stock who shall
file written objections with respect to such shares, in a timely
manner in accordance with the WVCA, to the Agreement, shall not
vote in favor of the Agreement, and have made written demand for
the fair value of such shares within ten days, in accordance with
WVCA Section 31-1-123. The Objecting Shares held by shareholders
who do not become Dissenting Shareholders shall be converted into
Wesbanco Common Stock in accordance with Section 5 hereof.
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SECTION 7
REPRESENTATIONS, WARRANTIES AND COVENANTS OF COMMERCIAL
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Commercial represents and warrants to and covenants with
Wesbanco and CBI, in its own right and with respect to its wholly
owned Subsidiaries, that:
7.1 Organization and Qualification of Commercial.
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Commercial is a corporation duly organized, validly existing and
in good standing under the laws of the State of West Virginia and
has the full corporate power and authority to own all of its
properties and assets and to carry on its business as it is now
being conducted, and neither the ownership of its property nor
the conduct of its business requires it or its Subsidiaries to be
qualified to do business in any other jurisdiction, except where
the failure to be so qualified, considering all such cases in the
aggregate, does not involve a material risk to the business,
properties, financial position or results of operations of
Commercial and its Subsidiaries taken as a whole.
7.2 Authorization of Agreement. The Board of Directors of
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Commercial has authorized the execution of this Agreement as set
forth herein, and subject to the approval of this Agreement by
the shareholders of Commercial as provided in the Articles of
Incorporation and Bylaws of Commercial and West Virginia Code 31-
1-117, Commercial has the corporate power and is duly authorized
to merge with CBI pursuant to this Agreement, and this Agreement
is a valid and binding agreement of Commercial enforceable in
accordance with its terms, except as enforceability may be
subject to applicable bankruptcy, insolvency, moratorium or other
similar laws affecting the enforcement of creditors' rights
generally and to any equitable principles limiting the right to
obtain specific performance of certain obligations thereunder.
7.3 No Violation of Other Instruments. Subject to
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obtaining any required consent (which consents will be obtained
by Commercial prior to Closing), the execution and delivery of
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this Agreement do not, and the consummation of the Merger and the
transactions contemplated hereby will not, violate any provisions
of Commercial's Articles of Incorporation or Bylaws, or any
provision of, or result in the acceleration of any obligation
under, any material mortgage, deed of trust, note, lien, lease,
franchise, license, permit, agreement, instrument, law, order,
arbitration award, judgment or decree or in the termination of
any material license, franchise, lease or permit to which
Commercial or its Subsidiaries (as defined in Section 7.5) are a
party or by which they are bound. After the approval of this
Agreement by the shareholders of the common stock of Commercial,
the Board of Directors and the shareholders of Commercial will
have taken all corporate action required by applicable law, the
Articles of Incorporation of Commercial, its Bylaws or otherwise
to authorize the execution and delivery of this Agreement and to
authorize the Merger of Commercial and CBI pursuant to this
Agreement.
7.4 Financial Statements. Commercial has delivered to
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Wesbanco copies of its consolidated statements of condition as of
December 31, 1996, 1995, and 1994, and the interim period ended
June 30, 1997, and its consolidated statements of income,
consolidated statements of changes in shareholders' equity and
consolidated statements of changes in financial position for the
three year period ended December 31, 1996, and the interim period
ended June 30, 1997, together with the notes thereto, accompanied
by an audit report relating to the financial statements for the
three years ended December 31, 1996, of Harman, Thompson, Xxxxxxx
& Ice, A.C., independent auditors. Such statements, together
with the related notes to all of said financial statements,
present fairly the consolidated financial position of Commercial
and its Subsidiaries and the consolidated results of their
operations as of the dates and for the periods ended on the dates
specified in accordance with generally accepted accounting
principles consistently applied throughout the periods indicated,
except as may be specifically disclosed in
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those financial statements, including the notes to the financial
statements attached thereto and subject to normal recurring year
end adjustments.
7.5 Subsidiaries of Commercial. The Subsidiaries of
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Commercial are Commercial Banking and Trust Company, Xxxxxxx
County Bank, Farmers & Merchants Bank of Xxxxxxx County, The Dime
Bank, Union Bank of Tyler County, The Community Bank, Bank of
Xxxxx City, Hometown Finance Company, Hometown Insurance Agency,
Inc. and CommBanc Investments, Inc. Such corporations are duly
organized, validly existing, and in good standing under the laws
of the States of West Virginia or Ohio, as the case may be, and
have the requisite corporate power and authority to own and lease
their properties and to conduct their business as they are now
being conducted and are currently contemplated to be conducted.
Commercial owns 100% of the issued and outstanding stock of such
corporations. All issued and outstanding shares of stock of the
Subsidiaries have been fully paid, were validly issued and are
nonassessable.
7.6 No Action, Etc. Except as disclosed in the Disclosure
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Schedule of Commercial dated not more than 60 days from the date
hereof (the "Commercial Disclosure Schedule"), and as
supplemented on the Effective Date, there are no suits, actions,
proceedings, claims or investigations (formal or informal)
pending, or to the knowledge of Commercial, threatened against or
relating to Commercial, its Subsidiaries, their business or any
of their properties or against any of their officers or directors
(in their capacity as such) in law or in equity or before any
governmental agency. There are no suits, actions, proceedings,
claims or investigations against Commercial, its Subsidiaries,
properties or against any of their officers or directors (in their
capacity as such) in law or in equity or before any governmental agency
which, individually or in the aggregate, would, or is reasonably
likely to, if determined adversely to such party,
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materially adversely affect the financial condition (present or
prospective), businesses, properties or operations of Commercial or
its Subsidiaries or the ability of Commercial or its Subsidiaries
to conduct their business as presently conducted or to consummate
the transaction contemplated hereby, and Commercial does not know
of any basis for any such action or proceeding. Except as disclosed
in the Commercial Disclosure Schedule, Commercial and its Subsidiaries
are not parties or subject to any cease and desist order, agreement
or similar arrangement with a regulatory authority which restricts their
operations or requires any action, and neither Commercial nor its
Subsidiaries are transacting business in material violation of
any applicable law, ordinance, requirement, rule, regulation or
order.
7.7 Capitalization. The authorized capital stock of
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Commercial consists of 5,000,000 shares of common stock, par
value of $5.00 per share, of which 1,616,187shares are duly
authorized, validly issued and outstanding and are fully paid and
nonassessable as of the date hereof, and 43,328 shares of
preferred stock with a par value of $100.00 per share, of which
no shares are issued and outstanding as of the date hereof.
There are no other options, warrants, calls or commitments of any
kind entitling any person to acquire, or securities convertible
into, Commercial Common Stock, except as provided in the Option
Agreement dated the date hereof to be issued in accordance with
this Agreement, and the Shareholder Rights Plan adopted by the
Board of Directors of Commercial on August 14, 1996.
The rights issued to shareholders of Commercial pursuant to
the Shareholder Rights Plan adopted by Commercial on August 14,
1996 (the "Rights Plan") have been redeemed in accordance with
the terms of the Rights Plan. The rights and the Rights Plan
have been terminated in accordance with the provisions of such
plan, with no further obligations to the
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shareholders of Commercial, and the rights and the Rights Plan are
no longer in force or effective.
7.8 Copies of All Contracts, Leases, Etc. Commercial has
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furnished, or will furnish, to Wesbanco a list of all material
contracts, leases and other agreements to which Commercial is a
party or by which it is bound and of all employment, pension,
retirement, stock option, profit sharing, deferred compensation,
consultant, bonus, group insurance or similar plan with respect
to any of the directors, officers or other employees of
Commercial and its Subsidiaries which list will be included in
the Commercial Disclosure Schedule, and which will be updated on
the Effective Date. Commercial will provide to Wesbanco true and
complete copies of such documents as may be reasonably requested
by Wesbanco.
7.9 Materially Adverse Contracts. Neither Commercial nor
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its Subsidiaries are a party to or otherwise bound by any
contract, agreement, plan, lease, license, commitment or
undertaking which is materially adverse, materially onerous or
materially harmful to Commercial and its Subsidiaries taken as a
whole. There is no breach or default by any party of or with
respect to any material provision of any material contract to
which Commercial or its Subsidiaries are a party that would have
a material adverse effect upon the financial
condition, operations, results of operations, business or
prospects of Commercial and its Subsidiaries taken as a whole.
7.10 Undisclosed Liabilities. Commercial and its
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Subsidiaries have no material liabilities other than those
liabilities disclosed on or provided for in the financial
statements delivered pursuant to Section 7.4 hereof, or as may be
disclosed in the Commercial Disclosure Schedule, none of which
would have a material adverse effect upon the financial condition
of Commercial and its Subsidiaries taken as a whole.
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7.11 Title to Properties. Except for capitalized leases,
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liens and encumbrances not material to the property and liens and
encumbrances on property acquired by Commercial and its
Subsidiaries in foreclosure of loans and existing at the time of
foreclosure, Commercial and its Subsidiaries have good and
marketable title to all of the property, interest in properties
and other assets, real and personal, set forth in their
consolidated balance sheet as of December 31, 1996, and
applicable interim period balance sheets or acquired since the
date thereof, other than property disposed of since such dates,
subject to no material liens, mortgages, pledges, encumbrances or
charges of any kind except liens reflected on said balance sheets or
set forth in the financial statements delivered pursuant to Section 7.4
hereof, and all of their material leases are in full force and effect
and neither Commercial nor its Subsidiaries are in material default
thereunder. No asset included in the financial statements referred
to above has been valued in such statements in excess of its cost
less depreciation or, in the case of investment securities, in excess
of cost, adjusted for amortization of premiums or accretion of
discounts. All material real and tangible personal property
owned by Commercial or its Subsidiaries and used or leased by
Commercial or its Subsidiaries in their business is in good
condition, normal wear and tear excepted, and is in good operating
order. All of such property is insured against loss for at least
80% of the full replacement value thereof (less applicable deductibles)
by reputable insurance companies authorized to transact business in
the States of West Virginia or Ohio.
7.12 Proxy Statement. The Proxy Statement referred to in
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Section 13 or any amendment or supplement thereto mailed to the
holders of the common stock of Commercial and Wesbanco will not
contain any untrue statement of a material fact concerning
Commercial or omit to state a material fact concerning Commercial
required to be stated therein or necessary to make the statements
contained therein, in light of the circumstances under which they
were
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made, not misleading with respect to Commercial, and will
comply, as to form in all material respects, with the
requirements of federal and West Virginia securities laws and any
other applicable Blue Sky Laws.
7.13 ERISA. Except as disclosed in the Commercial
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Disclosure Schedule, (i) each employee benefit plan subject to
Titles I and/or IV of ERISA and established or maintained for
persons including employees or former employees of Commercial, or
its Subsidiaries, (hereinafter referred to as "Plan") has been
maintained, operated, administered and funded in accordance with
its terms and with all material provisions of ERISA and the
Internal Revenue Code ("IRC") applicable thereto; (ii) no event
reportable under Section 4043 of ERISA has occurred and is
continuing with respect to any Plan; (iii) no liability to PBGC
has been incurred with respect to any Plan, other than for premiums
due and payable, and all premiums required to have been paid
to PBGC as of the date hereof have and as of the Effective
Date will have been paid; (iv) no Plan has been terminated, no
proceedings have been instituted to terminate any Plan, and no
decision has been made to terminate or institute proceedings to
terminate any Plan; (v) no Plan is a multi-employer Plan; (vi)
there has been no cessation of, and no decision has been made to
cease, operations at a facility or facilities where such
cessation could reasonably be expected to result in a separation
from employment of more than 20% of the total number of employees
who are participants under any plan; (vii) each Plan which is an
employee pension plan meets the requirements of "qualified plans"
under Section 401(a) of the IRC; (viii) no accumulated funding
deficiency within the meaning of Section 412 of the IRC or
Section 302 of ERISA has been incurred with respect to any Plan
subject to the funding standards of those provisions; (ix) with
respect to each Plan, there have been no prohibited transactions
as defined in Section 406 of ERISA or Section 4975 of the IRC,
and there are no actions, suits or claims
19
with respect to the assets thereof (other than routine claims for
benefits) pending or threatened; and (x) all required reports,
descriptions and notices (including, but not limited to, Form 5500
Annual Reports, Summary Annual Reports and Summary Plan Descriptions)
have been appropriately filed or distributed with respect to each Plan.
7.14 Exchange Act Reports. Commercial has delivered to
---------------------
Wesbanco true and correct copies of its Form 10-K (Annual Report)
for the year ended December 31, 1996, its Form 10-Q (Quarterly
Report) for the quarters ended March 31, 1997, and June 30, 1997,
as filed with the SEC, all of which were prepared and filed in
accordance with the applicable requirements and regulations of
the SEC, and all other documents and reports filed by Commercial
with the Securities & Exchange Commission ("SEC") pursuant to the
Securities Exchange Act of 1934 (the "Act") since January 1, 1997
(the "Reports"). Commercial has filed and will continue to file
all reports and other documents required to be filed with the SEC
pursuant to the Act in a timely manner. All of the Reports
complied in all material respects with the Act and did not
contain, as of their respective dates, any untrue statement of a
material fact or omit to state any material fact
necessary to make the statements therein not misleading in light
of the circumstances under which they were made.
7.15 Labor Disputes. Neither Commercial nor its Subsidiaries
---------------
are directly or indirectly involved in or threatened with any
labor dispute, including, without limitation, matters regarding
discrimination by reason of race, creed, sex, handicap or
national origin, which would materially and adversely affect
their financial condition, assets, businesses or operations taken
as a whole. No collective bargaining representatives represent
any employees of Commercial or the employees of its Subsidiaries,
and no petition for election of any collective bargaining
representative has been filed and to the knowledge of Commercial
and its Subsidiaries no
20
organizational campaign on behalf of any collective bargaining unit
has been undertaken by or on behalf of the employees of Commercial
or its Subsidiaries.
7.16 Reserve for Possible Loan Losses. The reserve for
---------------------------------
possible loan losses shown on the consolidated balance sheets of
Commercial and its Subsidiaries as of December 31, 1996, and June
30, 1997, delivered pursuant to this Agreement is adequate in all
material respects as of the respective dates thereof.
7.17 Taxes. Except as may be disclosed in the Commercial
------
Disclosure Schedule:
(a) Commercial and its Subsidiaries have
timely and properly filed all Federal Income Tax
Returns and all other federal, state, municipal and
other tax returns which they are required to file,
either on their own behalf or on behalf of their
employees or other persons or entities, all such
returns and reports being true and correct and
complete in all material respects, and have paid
all taxes, including penalties and interest, if
any, which have become due pursuant to such returns
or reports or forms or pursuant to assessments
received by them;
(b) Neither the Internal Revenue Service nor
any other taxing authority is now asserting against
Commercial or its Subsidiaries, or, to its
knowledge, threatening to assert against them, or
any of them, any material deficiency or claim for
additional taxes, interest or penalty;
(c) There is no pending or, to its knowledge,
threatened examination of the Federal Income Tax
Returns of Commercial or its Subsidiaries, and,
except for tax years still subject to the
assessment and collection of additional Federal
income taxes under the three year period of
21
limitations prescribed in IRC Section 6501(a), no
tax year of Commercial or its Subsidiaries remains
open to the assessment and collection of additional
material Federal Income Taxes; and
(d) There is no pending or, to its knowledge,
threatened examination of the West Virginia
Business Franchise or Ohio Franchise Tax Returns of
Commercial or its Subsidiaries, and, except for tax
years still subject to the assessment and
collection of additional Business Franchise Taxes
under the three year period of limitations
prescribed in X.Xx. Code Annot. Section 11-10-15,
and corresponding provision of the Ohio Revised
Code, no tax year of Commercial or its Subsidiaries
remains open to the assessment and collection of
additional Business Franchise Taxes.
(e) Commercial, and its Subsidiaries, have
properly accrued and reflected on their December
31, 1996, consolidated balance sheet, delivered
pursuant to Section 7.4 hereof, and have thereafter
to the date hereof properly accrued, and will from
the date hereof through the Closing Date properly
accrue, all liabilities for taxes and assessments,
and will timely and properly file all such federal,
state, local and foreign tax returns and reports
and forms which they are required to file, either
on their own behalf or on behalf of their employees
or other persons or entities, all such returns and
reports and forms to be true and correct and
complete in all respects, and will pay or cause to
be paid when due all taxes, including penalties and
interest, if any, which have become due pursuant to
such returns or reports
22
or forms or pursuant to assessments received by them, all
such accruals being in the aggregate sufficient for payment
of all such taxes and assessments.
7.18 Absence of Certain Changes. Except as may be disclosed
---------------------------
in the Commercial Disclosure Schedule, or except in connection
with the transactions contemplated by this Agreement, since
December 31, 1996:
(a) There has been no change in the material
assets, financial condition or liabilities
(contingent or otherwise), business, or results of
operations of Commercial and its Subsidiaries which
has had, or changes which in the aggregate have
had, a material adverse effect on the assets,
financial condition or results of operations of
Commercial and its Subsidiaries taken as a whole,
nor to their knowledge, has any event or condition
occurred which may result in such change or
changes;
(b) There has not been any material damage,
destruction or loss by reason of fire, flood,
accident or other casualty (whether insured or not
insured) materially and adversely affecting the
assets, financial condition, business or operations
of Commercial or its Subsidiaries taken as a whole;
(c) Other than in the ordinary course of
business, neither Commercial nor its Subsidiaries
have disposed of, or agreed to dispose of, any of
their material properties or assets, nor have they
leased to others, or agreed to so lease, any of
such material properties or assets;
(d) There has not been any change in the
authorized, issued or outstanding capital stock of
Commercial except as provided for in this
23
Agreement, or any material change in the
outstanding debt of Commercial or its Subsidiaries,
other than changes due to payments in accordance
with the terms of such debt or changes in deposits,
Federal funds purchased, repurchase agreements or other
short-term borrowings in the ordinary course of business;
(e) Except as otherwise disclosed in this
Agreement, Commercial has not granted any warrant,
option or right to acquire, or agreed to
repurchase, redeem or otherwise acquire, any shares
of its capital stock or any other of its securities
whatsoever;
(f) Commercial and its Subsidiaries have, and
shall have at Closing, personnel sufficient to
adequately staff all key positions within their
respective operations. There has not been any
material increase in the compensation or fees
payable by Commercial or its Subsidiaries to their
respective directors or officers for services in
their capacities as such, other than increases in
the regular course of business in accordance with
past practices or the personnel policies of
Commercial or its Subsidiaries, respectively, nor
any material increase in expenditures for any
bonus, insurance, pension or other employee benefit
plan, payment or arrangement for or with any of
such directors or officers other than increases in
the regular course of business in accordance with
past practices or the personnel policies of
Commercial or its Subsidiaries;
(g) Neither Commercial nor its Subsidiaries
have made any material loan or advance other than
in the ordinary course of business;
24
(h) Neither Commercial nor its Subsidiaries
have made any expenditure or major commitment for
the purchase, acquisition, construction or
improvement of any material asset or assets which
in the aggregate would be material other than in
the ordinary course of business;
(i) Neither Commercial nor its Subsidiaries
have entered into any other material transaction,
contract or lease or incurred any other material
obligation or liability other than in the
ordinary course of business; and
(j) There has not been any other event,
condition or development of any kind which
materially and adversely affects the material
assets, financial condition or results of
operations of Commercial or its Subsidiaries, taken
as a whole, and neither Commercial nor its
Subsidiaries have knowledge of any such event,
condition or development which may materially and
adversely affect the assets, financial condition or
results of operations of Commercial and its
Subsidiaries, taken as a whole.
7.19 Fidelity Bonds. The Subsidiaries have continuously
---------------
maintained fidelity bonds insuring them against acts of
dishonesty by each of their officers and employees in such
amounts as are required by law and as are customary, usual and
prudent for banks of their size. Since January 1, 1997, there
have been no claims under such bonds and, except as disclosed in
the Commercial Disclosure Schedule, neither Commercial nor its
Subsidiaries are aware of any facts which would form the basis of
a claim under such bonds. Neither Commercial nor its
Subsidiaries have any reason to believe that their fidelity
coverage will not be renewed by the applicable carrier on
substantially the same terms as its existing coverage.
25
7.20 Negative Covenants. Except as otherwise contemplated
-------------------
hereby, between the date hereof and the Effective Date, or the
time when this Agreement terminates as provided herein,
Commercial will not, except as contemplated by this Agreement,
without the prior written approval of Wesbanco:
(a) Make any change in its authorized capital
stock;
(b) Except for a minimum of 116,000 shares
and a maximum of 142,000 shares issuable in
Commercial's acquisition of Gateway Bancshares,
Inc., issue any shares of its common stock,
securities convertible into its common stock, or
any long term debt securities;
(c) Issue or grant any options, warrants or
other rights to purchase shares of its common
stock;
(d) Declare or pay any dividends or other
distributions on any shares of common stock other
than cash dividends which do not in the aggregate
exceed the lesser of $1.20 cents per share per year
(to be paid on a quarterly basis in such
proportions as are consistent with past practices)
or 50% of the after- tax income of Commercial for
the tax years in which paid;
(e) Purchase or otherwise acquire, or agree
to acquire, for a consideration any share of its
capital stock (other than in a fiduciary capacity);
(f) Except as otherwise contemplated by this
Agreement or as disclosed in or permitted by or
under the conditions set forth in Section 7.18(f)
above and except for any amendments required by
law, enter into or amend any employment, pension,
retirement, stock option, profit sharing,
26
deferred compensation, consultant, bonus, group insurance
or similar plan in respect of any of its directors,
officers or other employees for services in their
capacities as such or materially increase its
contribution to any pension plan, except as
disclosed in the Commercial Disclosure Schedule,
regarding pension or retirement plans or increases
in accordance with past practices;
(g) Take any action materially and adversely
affecting the financial condition (present or
prospective), businesses, properties or operations
of Commercial or its Subsidiaries, taken as a
whole;
(h) Acquire or merge with any other
company or acquire any branch or, other than in the
ordinary course of business, any assets of any
other company;
(i) Except in the ordinary course of business
as heretofore conducted, and except as hereinabove
provided, mortgage, pledge or subject to a lien or
any other encumbrance any of its material assets,
dispose of any of its material assets, incur or
cancel any material debts or claims, or increase
any compensation or benefits payable to its
officers or employees (other than as permitted in
Sections 7.18(f) and 7.20(f) hereof), except in the
ordinary course of business as heretofore
conducted, or take any other action not in the
ordinary course of its business as heretofore
conducted or incur any material obligation or enter
into any material contract; or
(j) Amend its Articles of Incorporation or
Bylaws, except as may be necessary to carry out
this Agreement or as required by law.
27
7.21. Additional Covenants. Except as otherwise
---------------------
contemplated by this Agreement, Commercial covenants and agrees:
(a) That it will promptly advise Wesbanco in
writing of the name and address of, and the number
of shares of Commercial stock held by, each
stockholder who elects to exercise his or her right
to dissent to the Merger pursuant to West Virginia
Code Annot. Sections 31-1-122 and 123;
(b) Subsequent to the date of this Agreement
and prior to the Effective Date, that it will
operate its business only in the ordinary course
and in a manner consistent with past practice;
(c) To the extent consistent with the
fiduciary duties of the Board of Directors to
Commercial and its shareholders and in compliance
with applicable law, that it will use its best
efforts to take or cause to be taken all action
required under this Agreement on its part to be
taken as promptly as practicable so as to permit
the consummation of the Merger at the earliest
possible date and to cooperate fully with the other
parties to that end;
(d) Commercial will not, and will not permit
any person acting on behalf of Commercial or its
Subsidiaries to, directly or indirectly, initiate
or solicit any acquisition proposal by any person,
corporation or entity. For the purposes of this
subsection, "acquisition proposal" means any
proposal to merge or consolidate with, or acquire
all or any substantial portion of the assets of,
Commercial or its Subsidiaries, or any tender or
exchange offer (or proposal to make any tender or
exchange offer) for any shares of stock
28
of Commercial, or any proposal to acquire more
than 10% of the outstanding shares of stock of
Commercial or any options, warrants or rights to
acquire, or securities convertible into or
exchangeable for, more than 10% of the outstanding
shares of stock of Commercial. Commercial will
give Wesbanco notice by telephone, promptly after
receipt thereof, of all material facts relating to
any acquisition proposal or any inquiry with
respect to any acquisition proposal and shall
confirm such notice in writing immediately
thereafter;
(e) To deliver to Wesbanco all Forms filed
with the SEC for periods ending after the date of
this Agreement within seven (7) days after the
filing of each such report with the SEC;
(f) To promptly advise Wesbanco of any
material adverse change in the financial condition,
assets, businesses or operations of Commercial or
its Subsidiaries, taken as a whole, or any material
changes or inaccuracies in data provided to
Wesbanco pursuant to this Agreement;
(g) To maintain in full force and effect its
and its Subsidiaries' present fire, casualty,
public liability, employee fidelity and other
insurance coverages or replacement insurance
coverage at substantially the same premium and
insurance levels;
(h) To cooperate with Wesbanco in furnishing
such information concerning the business and affairs
of Commercial, its Subsidiaries and their respective
directors and officers as is reasonably necessary or
requested in order to prepare and file
any application for regulatory or
29
governmental approvals, including, but not limited to,
an application to the Federal Reserve Board and the
West Virginia Department of Banking for prior
approval of the acquisition of Commercial by
Wesbanco as contemplated hereunder. Consistent
with its fiduciary duties, Commercial will use its
best efforts to obtain the approval or consent of
any federal, state or other regulatory agency
having jurisdiction and of any other party to the
extent that such approvals or consents are required
to effect the Merger and the transactions
contemplated hereby or are required with respect to
the documents described in Section 7.3 hereof; and
(i) To cooperate with Wesbanco in furnishing
such information concerning the business of
Commercial and its Subsidiaries as is reasonably
necessary or requested in order to prepare and file
any Registration Statement to be prepared in
connection with the issuance of Wesbanco Common
Stock as provided in Section 13 hereof.
SECTION 8
REPRESENTATIONS, WARRANTIES AND COVENANTS OF WESBANCO AND CBI
-------------------------------------------------------------
Wesbanco and CBI represent and warrant to Commercial and
covenant with Commercial that:
8.1 Corporate Organization of Wesbanco and Subsidiaries.
----------------------------------------------------
Wesbanco is, and upon execution hereof CBI will be, a corporation
duly organized, validly existing and in good standing under the
laws of the State of West Virginia, with full corporate power and
authority to carry on its business as it is now being conducted
and as contemplated by the Agreement and to own the properties
and assets which it owns, and neither the ownership of its
property nor the conduct of
30
its business requires it, or any of its subsidiaries, to be qualified
to do business in any other jurisdiction except where the failure to be
so qualified, considering all such cases in the aggregate, does not
involve a material risk to the business, properties, financial position
or results of operations of Wesbanco and its subsidiaries taken as a
whole. Each of Wesbanco's subsidiaries ("Wesbanco Subs"), other
than CBI, is a West Virginia, Ohio or Delaware corporation, duly
organized and validly existing in good standing under the laws of
Ohio, West Virginia or Delaware, as the case may be, with full
corporate power and authority to carry on its business as it is
now being conducted and to own the properties and assets which it
owns. All issued and outstanding shares of stock of CBI and
Wesbanco Subs are held, beneficially and of record, by Wesbanco
and have been or, as to CBI, on the date of its execution hereof,
will have been, fully paid, were validly issued and are
nonassessable. There are no options, warrants to purchase or
contracts to issue, or contracts or any other rights entitling
anyone to acquire, any other stock of CBI or any of the Wesbanco
Subs or securities convertible into shares of stock of CBI or any
of the Wesbanco Subs.
8.2 Corporate Power and Action. The Board of Directors of
---------------------------
Wesbanco has authorized the execution of this Agreement as set
forth herein, and subject to the approval of this Agreement by
the shareholders of Wesbanco as provided in its Articles of
Incorporation, its Bylaws and the WVCA, Wesbanco has the
corporate power and is duly authorized to merge with Commercial,
pursuant to this Agreement, and this Agreement is a valid and
binding agreement of Wesbanco enforceable in accordance with its
terms, except as enforceability may be subject to applicable
bankruptcy, insolvency, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and to
any equitable principles limiting the right to obtain specific
performance of certain obligations thereunder. Upon execution
hereof by CBI and subject to the
31
approval hereof by Wesbanco as its sole shareholder, CBI has the
corporate power to execute and deliver this Agreement and has taken
all action required by law, its Articles of Incorporation, its Bylaws
or otherwise to authorize and approve such execution and delivery, the
performance of the Agreement, the Merger and the consummation of
the transactions contemplated hereby; and this Agreement is a
valid and binding agreement of CBI enforceable in accordance with
its terms, except as enforceability may be subject to applicable
bankruptcy, insolvency, moratorium or other similar laws affecting
the enforcement of creditors' rights generally and to any equitable
principles limiting the right to obtain specific performance of certain
obligations thereunder.
8.3 Transfer of Securities to Exchange Agent Prior to, or
-----------------------------------------------------
as of the Closing Date. Prior to, or at the Closing Date,
-----------------------
Wesbanco will deliver to the Exchange Agent, Wesbanco Bank
Wheeling, for the benefit of the holders of the common stock of
Commercial, an amount of common stock of Wesbanco and cash
sufficient to meet the necessary amount of securities and cash
required pursuant to Section 5.
8.4 No Violation of Other Instruments. Subject to
----------------------------------
obtaining any required consents (which consents will be obtained
by Wesbanco prior to the Closing), the execution and delivery of
this Agreement do not, and the consummation of the Merger and the
transactions contemplated hereby will not, violate any provision
of the Articles of Incorporation or Bylaws of Wesbanco or any of
the Wesbanco Subs or any provision of, or result in the
acceleration of any obligation under, any material mortgage, Deed
of Trust, note, lien, lease, franchise, license, permit,
agreement, instrument, law, order, arbitration award, judgment or
decree, or in the termination of any material license, franchise,
lease or permit, to which Wesbanco or any of the Wesbanco Subs,
is a party or by which they are bound.
32
8.5 Application for CBI. Wesbanco shall cause to be filed
--------------------
with the West Virginia Secretary of State an application to
organize and incorporate CBI as a West Virginia corporation, in
accordance with the provisions of the West Virginia Code, and
upon the approval of such application and the issuance of a
Certificate of Incorporation for CBI by the Secretary of State of
West Virginia, Wesbanco shall cause CBI to execute and enter into
this Agreement and cause CBI to take such action as is provided
in this Agreement on CBI's part to be taken.
8.6 Good Faith. Wesbanco shall use its best efforts in
-----------
good faith to take or cause to be taken all action required under
this Agreement on its part to be taken as promptly as practicable
so as to permit the consummation of this Agreement at the
earliest possible date and cooperate fully with the other parties
to that end.
8.7 Exchange Act Reports. Wesbanco has delivered to
---------------------
Commercial true and correct copies of its Form 10-K (Annual
Report) for the year ended December 31, 1996, and its Forms 10-Q
(Quarterly Report) for the quarters ended March 31, 1997, and
June 30, 1997, as filed with the SEC, all of which were prepared
and filed in accordance with the applicable requirements and
regulations of the SEC. Wesbanco has also delivered to
Commercial true and correct copies of all documents and reports
filed by Wesbanco with the SEC pursuant to the Exchange Act since
January 1, 1997 (the "Wesbanco Reports"). Wesbanco has filed and
will continue to file all reports and other documents required to
be filed with the SEC pursuant to the Exchange Act in a timely
manner. All of the Wesbanco Reports complied in all material
respects with the Act and did not contain, as of their respective
dates, any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein not
misleading in light of the circumstances under which they were
made.
33
8.8 Subsidiaries of Wesbanco. In addition to CBI, the
-------------------------
subsidiaries of Wesbanco are Wesbanco Bank Wheeling, a West
Virginia banking corporation, Wesbanco Bank Charleston, a West
Virginia banking corporation, Wesbanco Bank Parkersburg, a West
Virginia banking corporation, Wesbanco Bank Fairmont, Inc., a
West Virginia banking corporation, Wesbanco Bank Barnesville, an
Ohio banking corporation, FFB Corporation, a West Virginia
corporation, Vandalia National Corporation, a Delaware
corporation, Wesbanco Properties, Inc., a West Virginia
corporation and Wesbanco Mortgage Company, a West Virginia
corporation. All have the requisite corporate power and
authority to own and lease their respective properties and to
conduct their respective businesses as they are now being
conducted and are currently contemplated to be conducted.
Wesbanco owns 100% of the issued and outstanding stock of all
such corporations.
8.9 Registered Bank Holding Company. Wesbanco is a duly
--------------------------------
registered bank holding company under the Bank Holding Company
Act of 1956, as amended.
8.10 Authority to Issue Shares. The shares of common stock
--------------------------
of Wesbanco to be issued pursuant to this Agreement will be duly
authorized at the time the Merger is consummated. When issued upon
the terms and conditions specified in this Agreement, such shares
shall be validly issued, fully paid, and nonassessable. The shareholders
of Wesbanco have, and will have, no preemptive rights with respect to the
issuance of the shares of Wesbanco Common Stock to be authorized and issued
in the transaction contemplated in this Agreement.
8.11 Financial Statements. Wesbanco has delivered to
---------------------
Commercial copies of its consolidated balance sheets as of
December 31, 1996, 1995, and 1994 and the interim period ended
June 30, 1997, and its consolidated statements of income,
consolidated statements of changes in shareholders' equity and
consolidated statements of changes in financial position for
34
the three year period ended December 31, 1996, and the interim period
ended June 30, 1997, together with the notes thereto, accompanied
by an audit report of Ernst & Young, LLP, independent auditors.
Such statements and the related notes to all of said financial
statements, present fairly the consolidated financial position of
Wesbanco and its consolidated subsidiaries and the consolidated
results of their operations as of the dates and for the periods
ended on the dates specified in accordance with generally
accepted accounting principles consistently applied throughout
the periods indicated, except as may be specifically disclosed in
those financial statements, including the notes to the financial
statements attached thereto, and subject to normal recurring year
end adjustments.
8.12 No Action, Etc.. Except as disclosed in the Wesbanco
----------------
Disclosure Schedule, dated not more than 60 days from the date
hereof (the "Wesbanco Disclosure Schedule"), and as supplemented
on the Effective Date, there are no suits, actions, proceedings,
claims or investigations (formal or informal) pending, or to the
knowledge of Wesbanco pending or threatened, against or relating
to Wesbanco, its subsidiaries, its businesses or any of its
properties or against any of their officers or directors (in
their capacity as such) in law or in equity or before any
governmental agency. There are no suits, actions, proceedings,
claims or investigations against or relating to Wesbanco, its
subsidiaries, its businesses, its properties or against any of
their officers or directors (in their capacity as such) in law or
in equity or before any governmental agency, which, individually
or in the aggregate, would, or is reasonably likely to,
if determined adversely to such party, materially adversely affect
the financial condition (present or prospective), businesses,
properties or operations of Wesbanco or its subsidiaries or the
ability of Wesbanco or its subsidiaries to conduct its business
as presently conducted or consummate the transaction contemplated
hereby, and Wesbanco does not know of any basis for any such
action
35
or proceeding. Neither Wesbanco nor any of its subsidiaries are
a party or subject to any cease and desist order, agreement or similar
arrangement with a regulatory authority which restricts its operations
or requires any action and neither Wesbanco nor any of its subsidiaries
are transacting business in material violation of any applicable law,
ordinance, requirement, rule, order or regulation.
8.13 Capitalization. The authorized capital stock of
---------------
Wesbanco consists of 25,000,000 shares of common stock, par
value of $2.0833 per share, of which 16,050,795 shares are duly
authorized, validly issued and outstanding (as of June 30, 1997)
and are fully paid and nonassessable, and 1,000,000 shares of
preferred stock, without par value, none of which are issued or
outstanding. There are no options, warrants, calls or
commitments of any kind entitling any person to acquire, or
securities convertible into, Wesbanco Common Stock, except as
herein provided. At June 30, 1997, Wesbanco held 21,542 shares
of its common stock as treasury stock. Wesbanco has no other
reserve commitments with respect to its common stock. The
current Wesbanco dividend is $0.20 per calendar quarter and
subject to regulatory, statutory and fiduciary requirements, it
has no present plan or intention to change such dividend.
Upon execution hereof by CBI, the authorized capital stock
of CBI will consist of 500 shares of common stock, par value of
$10.00 per share, of which all such shares will be duly
authorized and validly issued and outstanding and will be fully
paid and nonassessable. There are no options, warrants, calls or
commitments of any kind relating to, or securities convertible
into CBI Common Stock.
8.14 Copies of All Contracts, Leases, Etc. Wesbanco has
-------------------------------------
furnished, or will furnish, to Commercial a list of all material
contracts, leases and other agreements to which Wesbanco is a
party or by which it is bound and of all employment, pension,
retirement, stock option, profit
36
sharing, deferred compensation, consultant, bonus, group insurance
and similar plans with respect to any of the directors, officers or
other employees of Wesbanco which list will be included in the
Wesbanco Disclosure Schedule, and which will be updated on the
Effective Date. Wesbanco will provide to Commercial true and
complete copies of such documents as may be reasonably requested
by Commercial.
8.15 Materially Adverse Contracts. Neither Wesbanco nor any
-----------------------------
of its subsidiaries are a party to or otherwise bound by any
contract, agreement, plan, lease, license, commitment or
undertaking, which is materially adverse, materially onerous, or
materially harmful to Wesbanco or its subsidiaries taken as a
whole. There is no breach or default by any party of or with
respect to any material provision of any material contract to
which Wesbanco or its subsidiaries is a party that would have a
material adverse effect upon the financial condition, operations,
results of operations, business or prospects of Wesbanco or its
subsidiaries taken as a whole.
8.16 Undisclosed Liabilities. Wesbanco and the Wesbanco
------------------------
Subs have no material liabilities other than those liabilities
disclosed on or provided for in the financial statements
delivered pursuant to Section 8.11 of this Agreement, or as may
be disclosed in the Wesbanco Disclosure Schedule, none of which
would have a material adverse effect upon the financial condition
of Wesbanco and the Wesbanco Subs, taken as a whole.
8.17 Title to Properties. Except for capitalized leases and
--------------------
liens and encumbrances not material to the property and liens and
encumbrances on property acquired by the Wesbanco Subs in
foreclosure of loans and existing at the time of foreclosure,
Wesbanco and its subsidiaries have good and marketable title to
all of the property, interest in properties and other assets,
real or personal, set forth in its consolidated balance sheet as
of December 31, 1996, and applicable interim periods, or acquired
since that date, subject to no material liens, mortgages, pledges,
37
encumbrances, or charges of any kind except liens
reflected on said balance sheets, and all of its leases are in
full force and effect and neither Wesbanco nor any of its
subsidiaries is in material default thereunder.
No asset included in the financial statements referred to
above has been valued in such statements in excess of cost less
depreciation or, in the case of investment securities, in excess
of cost, adjusted for amortization of premiums or accretion of
discounts. All real and tangible personal property owned by
Wesbanco or its subsidiaries and used or leased by Wesbanco or
its subsidiaries, or for its business is in good condition,
normal wear and tear excepted, and is in good operating order.
All of such property is insured against loss for at least 80% of
the full replacement value thereof (less applicable deductibles)
by reputable insurance companies authorized to transact business
in the State of West Virginia.
8.18 Proxy Statement. The Proxy Statement referred to in
----------------
Section 13.2 of this Agreement or any amendment or supplement
thereto mailed to the holders of the common stock of Commercial
and Wesbanco will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements contained therein, in
light of the circumstances under which they were made, not
misleading with respect to Wesbanco, and will comply as to form
in all material respects with the requirements of federal and
West Virginia securities laws and any other applicable Blue Sky
laws.
8.19 Taxes. Except as may be disclosed in the Wesbanco
------
Disclosure Schedule:
(a) Wesbanco and its subsidiaries have timely
and properly filed all Federal Income Tax Returns
and all other federal, state, municipal and other
tax returns which they are required to file, either
on their own behalf or on behalf of their employees
or other persons or entities, all such returns
38
and reports being true and correct and complete in
all material respects, and have paid all taxes,
including penalties and interest, if any, which
have become due pursuant to such returns or reports
or forms or pursuant to assessments received by
them;
(b) Neither the Internal Revenue Service nor
any other taxing authority is now asserting against
Wesbanco or any of its subsidiaries, or, to
its knowledge, threatening to assert against them, or
any of them, any material deficiency or claim for
additional taxes, interest or penalty;
(c) There is no pending or, to its knowledge,
threatened examination of the Federal Income Tax
Returns of Wesbanco or any of its subsidiaries,
and, except for tax years still subject to the
assessment and collection of additional federal
income taxes under the three-year period of
limitations prescribed in IRC Section 6501(a), no
tax year of Wesbanco or any of its subsidiaries
remains open to the assessment and collection of
additional material Federal Income Taxes; and
(d) There is no pending or, to its knowledge,
threatened examination of the West Virginia
Business Franchise or Ohio Franchise Tax Returns of
Wesbanco or any of its subsidiaries, and, except
for tax years still subject to the assessment and
collection of additional Business Franchise Taxes
under the three-year period of limitations
prescribed in X.Xx. Code Annot. Section 11-10-15,
and corresponding provision of the Ohio Revised
Code, no tax year of Wesbanco or any of its
subsidiaries
39
remains open to the assessment and collection of
additional Business Franchise Taxes.
(e) Wesbanco, and its subsidiaries, have
properly accrued and reflected on their December
31, 1996, consolidated balance sheet, delivered
pursuant to Section 8.11 hereof, and have
thereafter to the date hereof properly accrued, and
will, from the date hereof, through the Closing
Date, properly accrue all liabilities for taxes and
assessments, and will timely and properly file all
such federal, state, local and foreign tax returns
and reports and forms which they are required to
file, either on their own behalf or on behalf of
their employees or other persons or entities, all
such returns and reports and forms to be true and
correct and complete in all respects, and
will pay or cause to be paid when due all taxes,
including penalties and interest, if any, which have
become due pursuant to such returns or reports or forms
or pursuant to assessments received by them, all such
accruals being in the aggregate sufficient for
payment of all such taxes and assessments.
8.20 Absence of Certain Changes. Except as may be disclosed
---------------------------
in the Wesbanco Disclosure Schedule, or except in connection with
the transactions contemplated by this Agreement, since December
31, 1996:
(a) There has been no change in the material
assets, financial condition, liabilities
(contingent or otherwise), business or results of
operation of Wesbanco and its subsidiaries which
has had, or changes in the aggregate which have
had, a material adverse effect on the assets,
financial
40
condition or results of operations of Wesbanco, nor,
to its knowledge, has any event or condition occurred
which may result in such change or changes;
(b) There has not been any material damage,
destruction, or loss by reason of fire, flood,
accident or other casualty (whether insured or not
insured) materially and adversely affecting the
assets, financial condition, business or operations
of Wesbanco or any of its subsidiaries taken as a
whole;
(c) Other than in the ordinary course of
business, neither Wesbanco nor any of its
subsidiaries have disposed of, or agreed to dispose
of, any of their material properties or assets, nor
have they leased to others, or agreed to so lease,
any of such material properties or assets;
(d) There has not been any change in the
authorized, issued or outstanding capital stock of
Wesbanco, except as provided for in this Agreement,
or any material change in the outstanding debt of
Wesbanco or any of its subsidiaries, other than changes
due to payments in accordance with the terms of such
debt or changes in deposits, federal funds purchased,
repurchase agreements or other short-term borrowings
in the ordinary course of business;
(e) Except as otherwise disclosed in this
Agreement, Wesbanco has not granted any warrant,
option or right to acquire, or agreed to
repurchase, redeem or otherwise acquire, any shares
of its capital stock or any other of its securities
whatsoever;
41
(f) Neither Wesbanco nor any of its
subsidiaries have made any material loan or advance
other than in the ordinary course of business;
(g) Neither Wesbanco nor any of its
subsidiaries has entered into any other material
transaction, contract or lease or incurred any
other material obligation or liabilities other than
in the ordinary course of business;
(h) Neither Wesbanco nor any of its
subsidiaries have made any expenditure or major
commitment for the purchase, acquisition,
construction or improvement of any material asset
or assets which in the aggregate would be material
other than in the ordinary course of business;
(i) There have not been any dividends or
other distributions declared or paid on any shares
of Wesbanco Common Stock or preferred stock of
Wesbanco which, taken in the aggregate with all
other such distributions declared or paid in the
same tax year, exceed 55% of the after-tax income
of Wesbanco for the tax year in which paid;
(j) Business has been conducted by Wesbanco
in the ordinary course and in a manner consistent
with past practice;
(k) There has been no change in the Articles
of Incorporation or Bylaws of Wesbanco which would
in the reasonable opinion of Commercial have a
material adverse effect on the rights of holders
of Wesbanco Common Stock; and
(l) There has not been any other event,
condition or development of any kind which
materially and adversely affects the
42
material assets, financial condition or results
of operations of Wesbanco or any of its subsidiaries,
and neither Wesbanco nor any of its subsidiaries
have knowledge of any such event, condition or
development which may materially and adversely
affect the material assets, financial condition or
results of operations of Wesbanco and its
subsidiaries.
8.21 Fidelity Bonds. Each of the Wesbanco Subs has
---------------
continuously maintained fidelity bonds insuring it against acts
of dishonesty by each of its officers and employees in such
amounts as are required by law and as are customary, usual and
prudent for a bank of its size. Since January 1, 1997, there
have been no claims under such bonds (except as may be disclosed
in the Wesbanco Disclosure Schedule) and, except as disclosed in
writing to Commercial, neither Wesbanco nor any Wesbanco Subs are
aware of any facts which would form the basis of a claim under
such bonds. Neither Wesbanco nor any Wesbanco Subs have any
reason to believe that any fidelity coverage will not be renewed
by their carriers on substantially the same terms as the existing
coverage.
8.22 ERISA. Except as disclosed in the Wesbanco Disclosure
------
Schedule (i) each employee benefit plan subject to Titles I
and/or IV of ERISA and established or maintained for persons
including employees or former employees of Wesbanco, or any of
its subsidiaries, (hereinafter referred to as "Plan") has been
maintained, operated, administered and funded in accordance with
its terms and with all material provisions of ERISA and the IRC
applicable thereto; (ii) no event reportable under Section 4043
of ERISA has occurred and is continuing with respect to any Plan;
(iii) no liability to PBGC has been incurred with respect to any
Plan, other than for premiums due and payable and all premiums
required to have been paid to PBGC as of the date hereof have been
and as of the Effective Date will have been paid; (iv) other than
43
the termination of the defined benefit pension plans of
Wheeling Dollar Bank, First National Bank and Trust Company, Xxxx
County Bank, First-Tyler Bank & Trust Company, Brooke National
Bank, First National Bank of Barnesville, Xxxxxxxx National Bank
and Bank of Weirton, no Plan has been terminated, no proceedings
have been instituted to terminate any Plan, and no decision has
been made to terminate or institute proceedings to terminate any
Plan; (v) with respect to the termination of the defined benefit
pension plans of Wheeling Dollar Bank, First National Bank and
Trust Company, Xxxx County Bank, First-Tyler Bank & Trust
Company, Brooke National Bank, First National Bank of
Barnesville, Xxxxxxxx National Bank and Bank of Weirton, all
required governmental and regulatory approvals of such
terminations have been obtained, all participants in such Plans
or their beneficiaries have received single premium annuity
contracts or other benefits which will provide those participants
or beneficiaries with the retirement income calculated under the
terms and conditions of such Plans, all liabilities of such Plans
have been paid, released, discharged or merged, and any surplus
assets remaining in such Plans after satisfaction of all of its
liabilities have been recovered by Wesbanco or its subsidiaries;
(vi) neither Wesbanco nor any of its subsidiaries currently are a
participating employer in any multi-employer or multiple employer
employee benefit pension plan (including any multi-employer plans
as defined in Section 3(37) of ERISA) and, with respect to any
multi-employer or multiple employer plan in which Wesbanco or any
of its subsidiaries was a participating employer, all
contributions due from Wesbanco or any of its subsidiaries to any
such multi-employer or multiple employer plan have been timely
paid and any additional contributions due on or before the
Effective Date shall have been paid; (vii) with respect to any
multi-employer pension plan subject to the Multi-Employer Pension
Plan Amendments Act of 1980 in which Wesbanco or any of its
subsidiaries was a participating employer, neither
44
Wesbanco nor any of its subsidiaries have incurred or will incur
any withdrawal liability, complete or partial, under Section 4201,
4203, or 4205 of ERISA, as a consequence of discontinuing
participating in such multi-employer pension plan; (viii) there
has been no cessation of, and no decision has been made to cease,
operations at a facility or facilities where such cessation could
reasonably be expected to result in a separation from employment of
more than 20% of the total number of employees who are participants
under any Plan; (ix) each Plan which is an employee pension plan
meets the requirements of "qualified plans" under Section 401(a)
of the IRC; (x) no accumulated funding deficiency within the meaning
of Section 412 of the IRC or Section 302 of ERISA has been incurred
with respect to any Plan subject to the funding standards of those
provisions; (xi) with respect to each Plan, there have been no
prohibited transactions as defined in Section 406 of ERISA or
Section 4975 of the IRC, and there are no actions, suits or
claims with respect to the assets thereof (other than routine
claims for benefits) pending or threatened; and (xii) all
required reports, descriptions and notices (including,
but not limited to, Form 5500 Annual Reports, Summary
Annual Reports and Summary Plan Descriptions) have been
appropriately filed with the government or distributed to
participants with respect to each Plan.
8.23 Labor Disputes. Neither Wesbanco nor any of its
---------------
subsidiaries are directly or indirectly involved in or threatened
with any labor dispute, including, without limitation, matters
regarding discrimination by reason of race, creed, sex, handicap
or national origin, which would materially and adversely effect
their financial condition, assets, businesses or operations taken
as a whole. No collective bargaining representatives represent
any Wesbanco, CBI or Wesbanco Subs employees and no petition for
election of any collective bargaining representative has been
filed and, to the knowledge of Wesbanco and its subsidiaries, no
organizational campaign on
45
behalf of any collective bargaining unit has been undertaken by
or on behalf of any Wesbanco, CBI or Wesbanco Subs employees.
8.24 Reserve for Possible Loan Losses. The reserve for
---------------------------------
possible loan losses shown on the consolidated balance sheets of
Wesbanco and its subsidiaries as of December 31, 1997, and June
30, 1997, delivered pursuant to this Agreement is adequate in all
material respects as of the dates thereof.
8.25 Additional Covenants. Except as otherwise contemplated
---------------------
by this Agreement, Wesbanco covenants and agrees:
(a) That it will use its best efforts in good
faith to take, or cause to be taken all action
required under this Agreement on its part, or CBI's
part, to be taken as promptly as practicable so as
to permit the consummation of the Merger at the
earliest possible date and to cooperate fully with
the other parties to that end, and that it will, in
all such efforts, give priority to this acquisition
of Commercial;
(b) To deliver to Commercial all Forms 10-K,
10-Q and 8-K filed for periods ending after the
date of this Agreement within seven (7) days after
the filing of each such report with the SEC;
(c) To promptly advise Commercial of any
material adverse change in the financial condition,
assets, businesses or operations of Wesbanco or any
of its subsidiaries, or any material changes or
inaccuracies in data provided to Commercial
pursuant to this Agreement or any "acquisition
proposal" with respect to Wesbanco received by
Wesbanco;
46
(d) To cooperate with Commercial in
furnishing such information concerning the business
and affairs of Wesbanco and its subsidiaries and
its directors and officers as is reasonably
necessary or requested in order to prepare and file
any application for regulatory or governmental
approvals, including but not limited to an
application to the Federal Reserve Board and the
West Virginia Department of Banking for prior
approval of the acquisition of Commercial by
Wesbanco as contemplated hereunder. Wesbanco will
use its best efforts to obtain the approval or
consent of any federal, state or other regulatory
agency having jurisdiction and of any other party
to the extent that such approvals or consents are
required to effect the Merger and the transactions
contemplated hereby or are required with respect to
the documents described in Section 8.4 hereof; and
(e) To cooperate with Commercial in
furnishing such information concerning the business
of Wesbanco and its subsidiaries as is reasonably
necessary or requested in order to prepare any
Proxy Statement to be prepared in connection with
the Merger.
SECTION 9
INVESTIGATION
-------------
Subject to the conditions set forth in this Section 9, prior
to the Effective Time, Wesbanco and Commercial may directly and
through their representatives, make such investigation of the
assets and business of Wesbanco and Commercial and their
subsidiaries as each deems necessary or advisable. Wesbanco and
Commercial and their representatives,
47
including their accountants, shall have, at reasonable times after
the date of execution by Wesbanco and Commercial hereof, full access
to the premises and to all the property, documents, material contracts,
books and records of each, and its subsidiaries, and to all
documents, information and working papers concerning each held by
such party's accountants, without interfering in the ordinary
course of business of such entity, and the officers of each will
furnish to the other such financial and operating data and other
information with respect to the business and properties of each
other and their subsidiaries as each shall from time to time
reasonably request; provided, however, that neither party shall
be required to give such access or information to the other party
to the extent that it is prohibited therefrom by rule,
regulation, or order of any regulatory body, and further provided
that confidential information of individual banking customers
shall not be photocopied or removed from the premises of such
institution. All data and information received by Wesbanco and
its authorized representatives from Commercial and by Commercial
and its authorized representatives from Wesbanco shall be held in
strict confidence by such party and its authorized
representatives, and neither party nor its authorized
representatives will use such data or information or disclose the
same to others except with the written permission of the other
party. For a period of 7 days after the date of execution
hereof, or prior completion of the investigation herein provided,
this Agreement may be terminated by each such corporation if such
investigation reveals to the other any information concerning the
other which in the opinion of such corporation would have a material
adverse effect on the present or future value of the other such
corporation and its subsidiaries' assets, net worth, business or
income taken as a whole. Each such corporation shall provide
prompt written notice to the other of such decision and the matters
relied on therefore.
48
SECTION 10
NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES
----------------------------------------------
The representations and warranties included or provided
herein shall not survive the Effective Date.
SECTION 11
CONDITIONS PRECEDENT; CLOSING DATE AND EFFECTIVE DATE
-----------------------------------------------------
11.1 Conditions Precedent of Wesbanco and Commercial. The
------------------------------------------------
consummation of this Agreement by Wesbanco and Commercial and the
Merger is conditioned upon the following:
(a) The shareholders of Commercial, CBI and
Wesbanco shall have approved this Agreement by such
vote as required by law;
(b) The West Virginia Banking Board (i) shall
have granted its final approval of the
incorporation and organization of CBI as a West
Virginia corporation and the Merger and (ii) shall
not, within 120 days from the date of Wesbanco's
submission to the Banking Board pursuant to West
Virginia Code Section 31A-8A- 4(a), have entered an
order disapproving the acquisition of Commercial by
Wesbanco pursuant to this Agreement;
(c) The Secretary of State of West Virginia
shall have issued a Certificate of Incorporation
for CBI;
(d) The Board of Governors of the Federal
Reserve System shall have approved the application
of Wesbanco to acquire Commercial; and of CBI to
become a bank holding company pursuant to this
Agreement;
49
(e) The Registration Statement of Wesbanco
shall still be effective on the date of the Closing
and all post-effective amendments filed shall have
been declared effective or shall have been
withdrawn by that date. No stop orders suspending
the effectiveness thereof shall have been issued
which remain in effect on the date of the Closing
or shall have been threatened, and no proceedings for
that purpose shall, before the Closing, have been initiated
or, to the knowledge of Wesbanco, threatened by the SEC.
All state securities and "Blue Sky" permits or
approvals required (in the opinion of Wesbanco and
Commercial to carry out the transaction contemplated
in this Agreement) shall have been received.
(f) No order to restrain, enjoin or otherwise
prevent the consummation of the transaction
contemplated in this Agreement shall have been
entered by any court or administrative body which
remains in effect on the date of the Closing.
(g) Wesbanco, Commercial and CBI shall have
received, in form and substance satisfactory to
Wesbanco's and Commercial's counsel, all consents,
federal, state, governmental, regulatory and other
approvals and permissions and the satisfaction of
all the requirements prescribed by law which are
necessary to the carrying out of the transactions
contemplated hereby shall have been procured,
including the filing of an effective Registration
Statement with the Securities and Exchange
Commission and the West Virginia Securities
Commissioner, and in addition, Wesbanco and
50
Commercial shall have received any and all consents
required with respect to the documents described
pursuant to Section 7.3 and Section 8.4 hereof;
(h) All delay periods and all periods for
review, objection or appeal of or to any of the
consents, approvals or permissions required with
respect to the consummation of the Merger and this
Agreement shall have expired;
(i) Unless waived by Wesbanco and Commercial,
the holders of not more than ten percent (10%) of
the Voting Shares (as defined in Section 6.1
hereof) shall have filed written objections to the
Agreement in accordance with the WVCA, not have
voted in favor of the Agreement at the special
meeting of Commercial shareholders referred to in
Section 13.1 hereof and have made written demand
for the fair value of such Voting Shares within ten
days;
(j) On or before the Closing Date, there
shall have been received an opinion from
Xxxxxxxxxxx & Xxxxxxxx, LLP in a form reasonably
satisfactory to counsel for Commercial
substantially to the effect that for Federal Income
Tax purposes:
(i) The statutory merger of
Commercial with CBI will constitute a
reorganization within the meaning of
Section 368(a)(1) of the Internal
Revenue Code of 1986 ("IRC"), and
Wesbanco, Commercial and CBI will each
be a "party to the reorganization" as
defined in IRC Section 368(b);
51
(ii) No gain or loss will be
recognized by Wesbanco, Commercial or
CBI as a result of the transactions
contemplated in the Agreement;
(iii) No gain or loss will be
recognized by the shareholders of
Commercial as a result of their exchange
of Commercial Common Stock for Wesbanco
Common Stock, except to the extent any
shareholder receives cash in lieu of a
fractional share or as a dissenting
shareholder;
(iv) The holding period of the
Wesbanco Common Stock received by each
holder of Commercial Common Stock will
include the period during which the
stock of Commercial surrendered in
exchange therefor was held, provided
such stock was a capital asset in the
hands of the holder on the date of
exchange; and
(v) The Federal Income Tax Basis
of the Wesbanco Common Stock received by
each holder of Commercial Common Stock
will be the same as the basis of the
stock exchanged therefore.
(k) No action, proceeding, regulation or
legislation shall have been instituted before any
court, governmental agency or legislative body to
enjoin, restrain or prohibit, or to obtain
substantial damages with respect to, the Agreement
or the consummation of the transactions
contemplated hereby, which, in the reasonable
judgment of Wesbanco or Commercial,
52
would make it inadvisable to consummate such transactions
(it being understood and agreed that a written request
by governmental authorities for information with
respect to the Merger may not be deemed by either
party to be a threat of material litigation or
proceeding, regardless of whether such request is
received before or after execution of the
Agreement).
(l) The approvals referred to in
subparagraphs (b), (c) and (d) of Subsection 11.1
herein shall not have required the divestiture or
cessation of any material part of the present
operations conducted by Wesbanco, Commercial or any
of their subsidiaries, and shall not have imposed
any other condition, which divestiture, cessation
or condition Wesbanco reasonably deems to be
materially disadvantageous or burdensome.
11.2 Conditions Precedent of Wesbanco. The consummation of
---------------------------------
this Agreement by Wesbanco and the Merger is also conditioned
upon the following:
(a) Unless waived by Wesbanco, the
representations and warranties of Commercial
contained in this Agreement shall be correct on and
as of the Effective Date with the same effect as
though made on and as of such date, except for
representations and warranties expressly made only
as of a particular date and except for changes
which have been consented to by Wesbanco or which
are not, in the aggregate, material and adverse, to
the financial condition, businesses, properties
or operations of Commercial and its Subsidiaries taken
as a whole, or which are the result of expenses or
transactions contemplated or permitted by the
Agreement, and Commercial
53
shall have performed in all material respects all of
its obligations and agreements hereunder theretofore to
be performed by it; and Wesbanco and CBI shall have received
on the Effective Date an appropriate certificate (in
affidavit form) dated the Effective Date and
executed on behalf of Commercial by one or more
appropriate executive officers of Commercial to the
effect that such officers have no knowledge of the
non-fulfillment of the foregoing condition;
(b) Opinion of Commercial Counsel. An
------------------------------
opinion of counsel from the law firm of Hunton &
Xxxxxxxx, counsel for Commercial, shall have been
delivered to Wesbanco, dated the Closing Date, and
in form and substance satisfactory to Wesbanco and
its counsel, to the effect that:
(i) Commercial is a corporation
duly organized, validly existing and in
good standing under the laws of the
State of West Virginia and has the full
corporate power and authority to own all
of its properties and assets and to
carry on its business as it is now being
conducted, and neither the ownership of
its property nor the conduct of its
business requires it, or its
Subsidiaries, to be qualified to do
business in any other jurisdiction
except where the failure to be so
qualified, considering all such cases in
the aggregate, does not involve a
material risk to the business,
properties, financial position or
results of operations of Commercial and
its Subsidiaries, taken as a whole.
54
(ii) Commercial has the full
corporate power to execute and deliver
the Agreement and Plan of Merger. All
corporate action of Commercial required
to duly authorize the Agreement and Plan
of Merger and the actions contemplated
thereby has been taken, and the
Agreement and Plan of Merger is valid
and binding on Commercial in accordance
with its terms, subject, as to the
enforcement of remedies, to applicable
bankruptcy, insolvency, moratorium, or
other similar laws affecting the
enforcement of creditors' rights
generally from time to time in effect,
and subject to any equitable principles
limiting the right to obtain specific
performance of certain obligations
thereunder.
(iii) All shares of common
stock of Commercial issued and
outstanding as of the Effective Date are
duly authorized, validly issued, fully
paid and nonassessable.
(iv) The consummation of the merger
contemplated by the Agreement and Plan
of Merger will not violate any provision
of Commercial's Articles of
Incorporation or Bylaws, or violate any
provision of, or result in the
acceleration of any material obligation
under, any material mortgage, loan
agreement, order, judgment, law or
decree known to such counsel to which
Commercial
55
is a party or by which it is bound and
will not violate or conflict with
any other material restriction of
any kind or character known to such
counsel to which Commercial is subject,
which would have a materially adverse
effect on the assets, business or operations
of Commercial, taken as a whole.
(v) Commercial's Subsidiaries are
West Virginia and Ohio corporations and
are duly organized, validly existing and
in good standing under the laws of the
States of West Virginia and Ohio and
have the requisite corporate power and
authority to own and lease their
properties and to conduct their
businesses as they are now being
conducted. To the best of such
counsel's knowledge, Commercial owns
100% of the issued and outstanding stock
of such corporations.
(vi) To the best of such counsel's
knowledge, as of the date hereof neither
Commercial nor its Subsidiaries were
involved in any litigation against them
(with possible exposure of $100,000.00
or more), pending or threatened, that
has not been disclosed to Wesbanco.
(vii) The rights issued to
shareholders of Commercial pursuant to
the Shareholder Rights Plan adopted by
Commercial on August 14, 1996 (the "Rights
56
Plan") have been redeemed in accordance
with the terms of the Rights Plan.
The right to exercise the rights
and the Rights Plan have been terminated
in accordance with the provisions of
such plan, with no further obligations
to the shareholders of Commercial, and
are no longer in force or effective.
(c) Unless waived by Wesbanco, on or before
the Effective Date, Ernst & Young, LLP, the
independent auditors for Wesbanco, shall
have rendered an opinion to Wesbanco that the Merger
will be treated as a "pooling of interest" for
accounting purposes.
(d) Commercial shall have delivered to
Wesbanco a schedule identifying all persons who may
be deemed to be "affiliates" of Commercial under
Rule 145 of the Securities Act of 1933, as amended,
and shall use its best efforts to cause each
affiliate to deliver to Wesbanco prior to the
Effective Date a letter substantially in the form
attached hereto as Exhibit "A".
(e) Xxxxxxx X. Xxxxxxx, Xx., Xxxxx X. Xxxxxxx,
W. Xxxxx Xxxxxxxxxxx, Xxxxx X. Xxxxxx, Xx., Xxxxxx X.
Lookbaugh and X. Xxxxxxx Law shall have duly executed
and delivered employment agreements with Commercial
and/or its Subsidiaries or successors, dated as of
the Closing Date, in substantially the form attached
hereto as Exhibits B, C, D, E, F and G.
(f) Commercial shall have furnished Wesbanco
with a certified copy of resolutions duly adopted
by the Board of Directors and the
57
shareholders of Commercial approving the
Agreement and authorizing the Merger and the
transactions contemplated hereby.
(g) Unless waived by Wesbanco, on the Closing
Date, there shall not be pending against Commercial
or its Subsidiaries or the officers or directors of
Commercial or its Subsidiaries in their capacity as
such, any suit, action or proceeding, including the
case styled Citizens Bancshares, Inc. v. Commercial
---------------------------------------
Bancshares, Inc. filed in the United States
----------------
District Court for the Northern District of Ohio,
Eastern Division and the proposed intervention
therein by Peoples Bancorp, Inc. and the Complaint
filed by Peoples Bancorp, Inc. styled Peoples
-------
Bancorp, Inc. v. Commercial Bancshares, Inc. which,
--------------------------------------------
in the reasonable judgment of Wesbanco, if
successful, could have a material adverse effect on
the financial condition or operations of Commercial
or its Subsidiaries. For purposes of this
subsection 11.2(g), the pendency at the Closing
Date of the suits named above shall not constitute
a failure of condition giving Wesbanco the right to
terminate the Agreement pursuant to Section 12.1(b)
unless (i) Wesbanco's Board of Directors, acting
reasonably and upon the advice of counsel,
concludes that such suits could result in a loss
exposure to Commercial, including fees, expenses
and damages of $250,000 or more, or (ii) injunctive
relief or specific performance has been awarded to
Citizens or Peoples or substantive requests for the
same are pending, which injunctive relief or
specific performance, in the judgment of Wesbanco's
Board of
58
Directors, acting reasonably and upon the
advice of counsel, could materially hinder
consummation of the Merger.
(h) Commercial shall have executed and
delivered to Wesbanco an Option Agreement,
substantially in the form attached hereto as
Exhibit H, dated the 12th day of September, 1997
(the "Option Agreement"), and incorporated herein
by reference.
(i) The rights issued under the Rights Plan
shall have been redeemed in accordance with the
terms of the Rights Plan. The right to exercise
the rights and the Rights Plan shall have been
terminated in accordance with the provisions of
such plan, with no further obligations to the
shareholders of Commercial, and the rights and the
Rights Plan are no longer in force or effective.
No right or claim pursuant to the Rights Plan shall
have been made, alleged, or threatened by any
shareholder of Commercial.
(j) Unless waived by Wesbanco, Gateway
Bancshares, Inc. shall have executed and delivered
to Wesbanco the First Amendment Agreement modifying
certain terms of that Agreement and Plan of Merger dated
August 15, 1997, by and between Commercial,
Gateway Bancshares, Inc. and CWV Holding Company,
Inc., in the form, or substantially the form,
attached hereto as Exhibit I and made a part
hereof.
11.3 Conditions Precedent of Commercial. The consummation
-----------------------------------
of this Agreement by Commercial and the Merger is also
conditioned upon the following:
59
(a) Unless waived by Commercial the
representations and warranties of Wesbanco and CBI
contained in this Agreement shall be correct on and
as of the Effective Date with the same effect as
though made on and as of such date, except for
representations and warranties expressly made only
as of a particular date and except for changes
which have been consented to by Commercial or which
are not in the aggregate material and adverse to
the financial condition, businesses, properties or
operations of Wesbanco and CBI or which are the
result of expenses or transactions contemplated or
permitted by this Agreement, and Wesbanco and CBI
shall have performed in all material respects all
of their obligations and agreements hereunder
theretofore to be performed by them; and Commercial
shall have received on the Effective Date an
appropriate certificate (in affidavit form) dated
the Effective Date and executed on behalf of
Wesbanco and CBI by one or more appropriate
executive officers of each of them to the effect
that such officers have no knowledge of the non-
fulfillment of the foregoing conditions;
(b) Opinion of Wesbanco Counsel. An opinion
----------------------------
of Phillips, Gardill, Xxxxxx & Xxxxxxxx, counsel
for Wesbanco, shall have been delivered to
Commercial, dated the Closing Date, and in form and
substance satisfactory to Commercial and its
counsel, to the effect that:
(i) Wesbanco and CBI are
corporations duly organized, validly
existing and in good standing under the
laws of the State of West Virginia and
have the full
60
corporate power and authority to
own all of their properties
and assets and to carry on their
businesses as they are now being
conducted, and neither the ownership of
their property nor the conduct of their
businesses require them, or any of their
subsidiaries, to be qualified to do
business in any other jurisdiction
except where the failure to be so
qualified, considering all such cases in
the aggregate, does not involve a
material risk to the business,
properties, financial position or
results of operations of Wesbanco, CBI
and the Wesbanco Subs, taken as a whole.
(ii) Wesbanco and CBI have the full
corporate power to execute and deliver
the Agreement and Plan of Merger. All
corporate action of Wesbanco and CBI
required to duly authorize the Agreement
and Plan of Merger and the actions
contemplated thereby has been taken, and
the Agreement and Plan of Merger is
valid and binding on Wesbanco and CBI in
accordance with its terms, subject, as
to the enforcement of remedies, to
applicable bankruptcy, insolvency,
moratorium, or other similar laws
affecting the enforcement of creditors'
rights generally from time to time in
effect, and subject to any equitable
principles limiting the right to obtain
specific performance of certain
obligations thereunder.
61
(iii) The shares of common
stock of Wesbanco into which shares of
common stock of Commercial shall be
converted pursuant to the terms of the
Agreement and Plan of Merger have
been duly authorized, and when
delivered pursuant to the terms
of the Agreement and Plan of
Merger, will have been legally and
validly issued, and will be fully
paid and nonassessable.
(iv) The consummation of the merger
contemplated by the Agreement and Plan
of Merger will not violate any provision
of Wesbanco's or CBI's Articles of
Incorporation or Bylaws, or violate any
provision of, or result in the
acceleration of any material obligation
under, any material mortgage, loan
agreement, order, judgment, law or
decree known to such counsel to which
Wesbanco or CBI are a party or by which
it is bound, and will not violate or
conflict with any other material
restriction of any kind or character
known to such counsel to which Wesbanco
or CBI are subject which would have a
material adverse effect on the assets,
business or operations of Wesbanco and
CBI, taken as a whole.
(v) Each of Wesbanco's
subsidiaries is duly organized, validly
existing and in good standing under the
laws of the state of its organization
and has the requisite
62
corporate power and authority to own and lease
its properties and to conduct its business
as it is now being conducted. To the
best of such counsel's knowledge,
Wesbanco owns 100% of the issued and
outstanding stock of each such
corporation.
(vi) To the best of such counsel's
knowledge, as of the date hereof,
neither Wesbanco nor any of its
subsidiaries were involved in any
litigation against them (with possible
exposure of $100,000.00 or more),
pending or threatened, that has not been
disclosed to Commercial.
(vii) The Registration
Statement for the stock to be delivered
pursuant to the Agreement and Plan of
Merger has become effective under the
Securities Act of 1933, and such counsel
is not aware of any stop orders in
effect with regard to such Registration
Statement.
(c) Xxxxxxxxx Associates, Inc., financial
advisors to Commercial, shall have furnished to
Commercial an opinion, or an updating of any
opinion rendered after the date of the Agreement,
dated on or prior to the distribution date of the
Proxy Statement described in Section 13.1 of this
Agreement, and at the election of Commercial,
updated as of the Closing if the Closing is held
more than five (5) days after the Commercial
meeting of shareholders, to the effect that the
Merger and transactions contemplated by
63
this Agreement are fair, from a financial point of view,
to Commercial and its shareholders.
(d) Wesbanco and CBI shall have furnished
Commercial with certified copies of resolutions
duly adopted by the Boards of Directors of Wesbanco
and CBI and the shareholders of CBI approving the
Agreement and authorizing the Merger and
transactions contemplated hereby.
(e) Unless waived by Commercial, on the
Closing Date, there shall not be pending against
Wesbanco or any of its subsidiaries or the officers
or directors of Wesbanco or any of its subsidiaries
in their capacity as such, any suit, action or
proceeding which, in the reasonable judgment of
Commercial, if successful, would have a material
adverse effect on the financial condition or
operations of Wesbanco or any of its subsidiaries.
(f) Unless waived by Commercial, there shall
not have been any change in control of Wesbanco
since July 1, 1997.
(g) Wesbanco shall assume the obligations of
Commercial arising under the Change in Control
Arrangements with Xxxxxxx X. Xxxxxxx, Xx. and Xxxxx
X. Xxxxxxx dated November 1, 1996, as amended by
Exhibits F and G.
11.4 Closing Date. The Closing shall be effected as soon as
-------------
practicable after all of the conditions contained herein shall
have been satisfied on the Closing Date as defined in Section 2.3
hereof, which Closing Date shall be the latest of:
(a) The day of the meetings of the
shareholders of Commercial or Wesbanco, whichever
is later, at which the Agreement is approved;
64
(b) The fifteenth (15th) day after the
approval of the acquisition of Commercial by the
Board of Governors of the Federal Reserve System
(the "Federal Reserve Board");
(c) The day after any stay of the Federal
Reserve Board's approval of the acquisition of
Commercial shall be vacated or shall have expired
or the day after any injunction against the closing
of the Merger shall be lifted, discharged or
dismissed;
(d) The day after the approval of the
acquisition of Commercial by the West Virginia
Department of Banking is received by Wesbanco;
(e) The date on which the conditions set
forth in Section 11 are satisfied or waived;
(f) Such other date as shall be mutually
agreed to by Wesbanco and Commercial.
The Closing shall be held in Parkersburg, West Virginia, at such
time and place as the parties may agree upon. The date and time
of closing are herein called the "Closing Date". Promptly
after the Closing, the Articles of Merger with respect to the Merger
shall be filed with the Secretary of State of West Virginia.
11.5 Effective Date. The Merger shall become effective (the
---------------
"Effective Date") on the date on which the Certificate of Merger
approving the Merger is issued by the Secretary of State of West
Virginia. The Surviving Corporation shall record said
Certificate of Merger in the office of the Clerk of the County
Commission of Wood County.
65
SECTION 12
TERMINATION OF AGREEMENT
------------------------
12.1 Grounds for Termination. This Agreement and the
------------------------
transactions contemplated hereby may be terminated at any time
prior to the Closing Date either before or after the meeting of
the shareholders of Commercial:
(a) By mutual consent of Commercial and
Wesbanco;
(b) By either Commercial or Wesbanco if
any of the conditions hereto to such party's
obligations to close have not been met as of
the Closing Date and the same has not been
waived by the party adversely affected
thereby;
(c) By either Commercial or Wesbanco if
the Merger shall violate any non-appealable
final order, decree or judgment of any court
or governmental body having competent
jurisdiction;
(d) By Commercial or Wesbanco, if the
Closing Date has not occurred by March 31,
1998;
(e) By Commercial, unless waived by
Commercial, if the Market Value of Wesbanco
stock shall fall below $25.00 per share as of
the Closing Date. Market Value, for purposes
of this paragraph, shall mean the average bid
price of Wesbanco Common Stock (as quoted on
NASDAQ) for the 30 calendar days preceding
five business days before the Closing.
66
(f) By either party in the event that
the shareholders of Commercial or the
shareholders of Wesbanco vote against
consummation of the Merger.
(g) By Wesbanco or Commercial within 7
days of the date hereof pursuant to the
provisions of Section 9 of this Agreement.
12.2 Effect of Terminating; Right to Proceed. In the event
----------------------------------------
this Agreement shall be terminated pursuant to Section 12.1, all
further obligations of Wesbanco and Commercial under this
Agreement, except Sections 9, 12.1, 12.2, and 19 hereof, shall
terminate without further liability of Wesbanco and CBI to
Commercial or of Commercial to Wesbanco and CBI.
12.3 Return of Documents in Event of Termination. In the
--------------------------------------------
event of termination of this Agreement for any reason, Wesbanco
and Commercial shall each promptly deliver to the other all
documents, work papers and other material obtained from each
other relating to the transactions contemplated hereby, whether
obtained before or after the execution hereof, including
information obtained pursuant to Section 9 hereof, and will take
all practicable steps to have any information so obtained kept
confidential, and thereafter, except for any breach of the
continuing sections of the Agreement, each party shall be
mutually released and discharged from liability to the other
party or to any third parties hereunder, and no party shall be
liable to any other party for any costs or expenses paid or
incurred in connection herewith.
SECTION 13
MEETING OF SHAREHOLDERS OF COMMERCIAL AND WESBANCO
--------------------------------------------------
13.1 Subject to receipt by Commercial of the fairness
opinion described in Section 11.3(c) hereof, Commercial shall
take all steps necessary to call and hold a special meeting of
its
67
shareholders, in accordance with applicable law and the
Articles of Incorporation and Bylaws of Commercial as soon as
practicable (considering the regulatory approvals required to be
obtained) for the purpose of submitting this Agreement to its
shareholders for their consideration and approval and will send
to its shareholders for purposes of such meeting a Proxy
Statement which will not contain any untrue statement of a
material fact with respect to Commercial or omit to state a
material fact with respect to Commercial required to be stated
therein or necessary to make the statements contained therein, in
light of the circumstances under which they were
made, not misleading, and which otherwise materially complies as
to form with all applicable laws, rules and regulations.
13.2 Wesbanco shall take all steps necessary to call and
hold a special meeting of its shareholders, in accordance with
applicable law and the Articles of Incorporation and Bylaws of
Wesbanco as soon as practicable (considering the regulatory
approvals required to be obtained) for the purpose of submitting
this Agreement to its shareholders for their consideration and
approval and will send to its shareholders for purposes of such
meeting a Proxy Statement which will not contain any untrue
statement of a material fact with respect to Wesbanco or omit to
state a material fact with respect to Wesbanco required to be
stated therein or necessary to make the statements contained
there, in light of the circumstances under which they were made,
not misleading, and which otherwise materially complied as to
form with all applicable laws, sales and regulations.
13.3 It is understood that as an integral part of the
transaction contemplated by this Agreement, Wesbanco shall file a
Registration Statement with respect to the offering of its common
shares to be issued in the Merger. The term "Registration
Statement" as used in this Agreement includes all preliminary
filings, post-effective amendments and any Proxy Statement
68
of Commercial and Wesbanco. Accordingly, Wesbanco and Commercial
agree to assist and cooperate fully with each other in the
preparation of the Registration Statement. Both Commercial and
Wesbanco further agree to deliver to each other, both as of the
Effective Date of the Registration Statement and as of the
Closing, a letter, in form and substance satisfactory to the
other party and its counsel, stating that, to the best of their
knowledge and belief, all of the facts with respect to either
Wesbanco or Commercial, as the case may be, set forth in the
Registration Statement, are true and correct in all material
respects, and that the Registration Statement does not omit any
material fact necessary to make the facts stated therein with
respect to such party not misleading in light of the
circumstances under which they were made.
SECTION 14
BROKERS
-------
Commercial represents and warrants to Wesbanco and Wesbanco
represents and warrants to Commercial that no broker or finder
has been employed, or is entitled to a fee, commission or other
compensation, with respect to this Agreement or the transactions
contemplated hereby, other than fees due from Commercial to
Xxxxxxxxx Associates, Inc., its financial advisor.
SECTION 15
GOVERNING LAW; SUCCESSORS AND
ASSIGNS; COUNTERPARTS; ENTIRE AGREEMENT
---------------------------------------
This Agreement (a) shall be governed by and construed under
and in accordance with the laws of the State of West Virginia;
(b) shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns,
provided, however, that this Agreement may not be assigned by any
party without the written consent of the other parties hereto;
(c) may be executed in one or more counterparts, all of which
shall be considered one and the same agreement, and shall become
effective and binding as to Wesbanco and Commercial
69
when one or more counterparts shall have been signed and delivered
by Wesbanco and Commercial and shall become effective and binding as
to CBI when CBI receives its Certificate of Incorporation and its
officers execute the Agreement; and (d) embodies the entire
Agreement and understanding of the parties with respect to the
subject matter hereof; and (e) supersedes all prior agreements
and understandings, written or oral, between Commercial and
Wesbanco relating to the subject matter hereof.
SECTION 16
EFFECT OF CAPTIONS
------------------
The captions of this Agreement are included for convenience
only and shall not in any way affect the interpretation or
construction of any of the provisions hereof.
SECTION 17
NOTICES
-------
Except as specifically provided in Section 7.21(d) hereof,
any notices or other communication required or permitted
hereunder shall be sufficiently given if delivered
personally or sent by first class, registered or certified mail
postage prepaid, with return receipt requested addressed as follows:
To Commercial:
Commercial Bancshares, Incorporated
000 Xxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
ATTENTION: Xxxxxxx X. Xxxxxxx, Xx., President
With a copy to:
Hunton & Xxxxxxxx
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
ATTENTION: Xxxxxx X. Xxxxx, Esq.
70
To Wesbanco:
Wesbanco, Inc.
Xxx Xxxx Xxxxx
Xxxxxxxx, XX 00000
ATTENTION: Xxxxxx X. Xxxxxx, President
With a copy to:
Phillips, Gardill, Xxxxxx & Xxxxxxxx
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
ATTENTION: Xxxxx X. Xxxxxxx, Esq.
or such other addresses as shall be furnished in writing by
either party to the other party. Any such notice or
communication shall be deemed to have been given as of the date
so mailed.
SECTION 18
AMENDMENTS
----------
Any of the terms or conditions of the Agreement may be
waived at any time by the party which is, or the shareholders of
which are, entitled to the benefit thereof, by action taken by
the Board of Directors of such party, or any of such terms or
conditions may be amended or modified in whole or in part at any
time as follows. This Agreement may be amended in writing
(signed by all parties hereto) before or after the meeting of
Commercial shareholders at any time prior to the Closing Date
with respect to any of the terms contained herein, provided,
however, that if amended after such meeting of shareholders, the
conversion ratio per share at which each share of common stock of
Commercial shall be converted in the Merger and any other
material terms of the Merger shall not be amended after the
meeting of Commercial shareholders unless the amended terms are
resubmitted to the shareholders for approval. Neither the
Agreement nor any provisions hereof, may be changed, waived,
discharged or terminated orally, or by the
71
passage of time, except by a statement in writing signed by the party
against which the enforcement of such change, waiver, discharge or
termination is sought.
SECTION 19
EXPENSES
--------
Each party to this Agreement shall pay its own legal and
accounting fees and other costs and expenses incurred in
connection with this Agreement and the transactions contemplated
hereby.
SECTION 20
MISCELLANEOUS
-------------
20.1 Publicity. The parties will not publicly release any
----------
information about the transactions contemplated hereby except as
they may mutually agree or as may be required by law.
20.2 Incorporation by Reference. Any and all schedules,
---------------------------
exhibits, annexes, statements, reports, certificates or other
documents or instruments referred to herein or attached hereto
are incorporated herein by reference as though fully set forth at
the point referred to in the Agreement.
20.3 Material Adverse Change. In determining whether there
------------------------
has been a material adverse change for purposes of this
Agreement, costs and expenses of the transactions contemplated
hereby shall not be taken into account provided, however, that
only the first $50,000 of such expenses shall be so excluded.
20.4 Binding Date. This Agreement is effective and binding
-------------
as to Wesbanco and Commercial upon the date first above written
and effective and binding as to CBI upon execution hereof by CBI.
72
IN WITNESS WHEREOF, Wesbanco and Commercial have each caused
this Agreement to be executed on its behalf by its officers
thereunto duly authorized all as of the day and year first above
written and CBI has caused this Agreement to be executed on its
behalf by its officers thereunto duly authorized as of the date
set forth below.
WESBANCO, INC., a West Virginia
corporation
By /s/ X. X. Xxxxxx
-------------------------------
Its President
-------------------------
(SEAL)
ATTEST:
/s/ Xxxxxxx X. Xxxxx
--------------------
Secretary
COMMERCIAL BANCSHARES,
INCORPORATED, a West Virginia corporation
By /s/ Xxxxxxx X. Xxxxxxx, Xx.
---------------------------------
Its President
---------------------------
(SEAL)
ATTEST:
/s/ Xxxxx X. Xxxxxxx
--------------------
Secretary
73
CBI CORPORATION, a West Virginia
corporation as of the ____ day of____________,
19___.
By_______________________________________
Its _______________________
(SEAL)
ATTEST:
__________________________
Secretary
74
EXHIBIT A
---------
AFFILIATE LETTER
----------------
Wesbanco, Inc.
Xxxx Xxxxx
Xxxxxxxx, XX 00000
Gentlemen:
Reference is made to the Agreement and Plan of Merger (the
"Agreement"), dated as of the _____ day of ____________, 1997, by
and between Wesbanco, Inc. ("Wesbanco") and Commercial
Bancshares, Incorporated ("Commercial") providing for the merger
("Merger") of Commercial with CBI Corporation ("CBI"), a wholly
owned subsidiary of Wesbanco, whereby Wesbanco shall acquire all
of the outstanding common stock of Commercial through and as a
result of such Merger in exchange for shares of the common stock
of Wesbanco. The undersigned stockholder of Commercial has been
identified as a person who may be an "Affiliate" of Commercial
for purposes of Rule 145 of the Securities Act of 1933, as
amended (the "Act"). As a result of the transactions
contemplated by the Agreement, the undersigned stockholder will
receive shares of Wesbanco stock. In consideration of the
receipt of such shares, the undersigned stockholder warrants and
covenants as follows:
(1) Until the expiration of the limitation on
the transfer as provided in Rule 145 of the shares of
Wesbanco Common Stock received as a result of the
Merger, the undersigned stockholder will not sell,
transfer or assign, and Wesbanco shall not be required
to give effect to any attempted sale, transfer or
assignment, except pursuant to (i) a Registration
Statement then in effect under the Act, (ii) a
transaction permitted by Rule 145 as to which Wesbanco
has received evidence of compliance with the provisions
of Rule 145 reasonably satisfactory to it, or (iii) a
transaction which, in the opinion of counsel or as
described in a "no action" or interpretive letter from
the staff of the Securities and Exchange Commission, in
either case in form and substance reasonably
satisfactory to Wesbanco, is exempt from or otherwise
complies with the registration requirements of the Act.
(2) Until the expiration of any limitation on
the transfer of the Wesbanco Common Stock as provided
in Rule 145(d), each certificate the undersigned
receives for Wesbanco Common Stock as a result of the
Merger may bear a restrictive legend in substantially
the following form:
75
"The shares represented by this certificate have
been issued to the registered holder as a result of a
transaction to which Rule 145 under the Securities Act
of 1933 (the "Act") as amended, applies. The shares
represented by this certificate may not be sold,
transferred, or assigned, and the issuer shall not be
required to give effect to any attempted sale, transfer
or assignment, except pursuant to (i) the Registration
Statement then in effect under the Act, (ii) a
transaction permitted by said Rule 145 reasonably
satisfactory to it, or (iii) a transaction which, in
the opinion of counsel or as described in a 'no action'
or interpretive letter from the staff of the Securities
and Exchange Commission, in each case satisfactory in
form and substance to the issuer, is exempt from the
registration requirements of the Act."
Very truly yours,
_____________________________________
ACCEPTED this _____ day of
_______________, 1997.
WESBANCO, INC.
By________________________
Its________________
