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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 22nd day of
February, 2001, 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, AMERICAN BANCORPORATION,
an Ohio corporation, with its principal place of business
located at 0000 Xxxx Xxxxxx, Xxxxxxxx, Xxxx Xxxxxxxx, 00000,
(hereinafter called "American") party of the second part, AB
CORPORATION (hereinafter called "AB"), 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) and WESBANCO BANK, INC., a West
Virginia banking corporation, with its principal place of
business located at Xxx Xxxx Xxxxx, Xxxxxxxx, Xxxx Xxxxxxxx,
00000, party of the fourth part (hereinafter called "Bank").
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, American is an Ohio corporation duly organized and
validly existing under the laws of the State of Ohio, and is a
registered bank holding company under the Bank Holding Company
Act of 1956, as amended, which owns, as its principal
subsidiary, Wheeling National Bank, a national banking
association (hereinafter also referred to as "Subsidiary"), and
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WHEREAS, AB 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 AB shall, prior to the
execution hereof by AB, 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 AB's Charter as hereinafter provided, and
WHEREAS, Wesbanco desires to acquire American and the Board
of Directors of American 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 American and
its shareholders for American to enter into this Agreement to
become affiliated with Wesbanco, and
WHEREAS, it is proposed that Wesbanco, American, AB and
Bank enter into this Agreement whereby American will merge with
and into AB (the "Merger") and the outstanding shares of common
stock of American, without par value, ("American Common Stock"),
will be converted into shares of common stock of Wesbanco, par
value $2.0833, ("Wesbanco Common Stock") at an exchange ratio of
1.1 shares of Wesbanco Common Stock for each share of American
Common Stock exchanged therefor, and the Subsidiary will be
merged with and into Bank with Bank as the surviving corporation
(the "Bank Merger").
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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:
SECTION 1
AB
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1.1 Formation. Wesbanco shall promptly cause AB to be
duly organized as a business corporation under the laws of the
State of West Virginia. AB 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 AB to
conduct any business operations other than such activities which
are necessary to consummate the merger contemplated in the
Agreement.
1.3 Execution of Agreement. Promptly after the
organization of AB, Wesbanco shall cause AB 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 AB.
1.4 Voting of AB Shares. Promptly after the organization
of AB, Wesbanco, as sole shareholder of AB, shall vote all of
the shares of AB in favor of the Merger.
SECTION 2
THE MERGER
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2.1 The Merger. At the Effective Time (as defined in
Section 2.5), subject to the provisions of this Agreement,
American shall merge with AB, under the charter of AB. AB shall
be the surviving corporation (hereinafter also called the
"Surviving Corporation").
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2.2 Effect of Merger. At the Effective Time, the
corporate existence of American, with all of its purposes,
powers and objects, and all of its rights, assets, liabilities
and obligations, shall cease. AB as the Surviving Corporation
shall continue unaffected and unimpaired by the Merger. AB as
the Surviving Corporation shall also succeed to all of the
rights, assets, liabilities and obligations of American in
accordance with the West Virginia Corporations Act ("WVCA").
Upon the Effective Date, (as defined in Section 12.5 hereof),
the separate existence and corporate organization of American
shall cease.
2.3 Closing. Wesbanco, American and AB will jointly
request the Secretary of State of West Virginia to issue a
Certificate of Merger on the date of the closing described in
Section 12.4 hereof (the "Closing" and the "Closing Date").
2.4 American's Obligations. American shall at any 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
conditions herein provided, Articles of Merger, incorporating
this Agreement, shall be executed to comply with the applicable
filing
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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 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 Ohio 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
THE BANK MERGER
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3.1 The Bank Merger. At the Effective Time of the Bank
Merger (as defined in Section 3.5), subject to the provisions of
this Agreement, the Subsidiary shall merge with the Bank, under
the charter of Bank. Bank shall be the surviving corporation
(hereinafter also called the "Surviving Bank Corporation").
3.2 Effect of Merger. At the Effective Time, the
corporate existence of Bank, 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 Bank as the Surviving Bank Corporation shall
continue to be governed by the laws of the State of West
Virginia. Bank as the Surviving Bank Corporation shall also
succeed to all of the rights, assets, liabilities and
obligations of the Subsidiary in accordance with the WVCA. Upon
the Effective Date of the Bank Merger (as defined in Section
12.5 hereof, the separate existence and corporate organization
of the Subsidiary shall cease. This section shall not be
construed, except as otherwise specifically provided herein, (i)
to limit the ability of Wesbanco and its subsidiaries to
terminate the employment of any employee of the Subsidiary or to
review employee benefit
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programs from time to time and to make such changes as Wesbanco
deems appropriate, or (ii) to require Wesbanco or its subsidiaries
to provide employees or former employees of the Subsidiary with
post-retirement medical benefits.
3.3 Closing. Bank and the Subsidiary will jointly request
the Secretary of State of West Virginia to issue a Certificate
of Merger on the date of the closing described in Section 12.4
hereof (the "Closing" and the "Closing Date").
3.4 Subsidiary's Obligations. The Subsidiary shall at any
time, or from time to time, as and when requested by the
Surviving Bank 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 Bank 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 Bank 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 Bank 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 Bank Corporation.
3.5 Articles of Merger. Subject to the terms and
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 will duly issue a Certificate of Merger. The
Surviving Bank Corporation shall record said Certificate of
Merger in the office of the Clerk of the County Commission of
Ohio County. The
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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 4
ARTICLES OF INCORPORATION;
BYLAWS; BOARD OF DIRECTORS AND OFFICERS
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4.1 AB. The Articles of Incorporation of AB, as
organized, shall constitute the Articles of Incorporation of the
Surviving Corporation. The Bylaws of AB as in effect on the
Effective Date shall constitute the Bylaws of the Surviving
Corporation. The directors and officers of AB 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.
4.2 Bank. The Articles of Incorporation of Bank and the
Bylaws of Bank, as in effect on the Effective Date, shall
continue as the Articles of Incorporation and Bylaws of Bank
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 Bank on the Effective
Date shall continue as the directors and officers of Bank after
the Bank Merger and shall hold office as prescribed in the
Bylaws of Bank and applicable law, until their successors shall
have been elected and shall qualify.
4.3 Bank Directors. Wesbanco covenants and agrees that as
of the Effective Date it will appoint, as additional directors
of Bank, Xxxx X. Xxxxxxx, Xxxxxx X. XxXxxxx, and Xxxxxxx X.
XxXxxxx, specifically waiving for such limited term, its age 70
provision of its Bylaws. Such individuals shall serve until the
annual meeting to be held in April, 2002, at which time the
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terms for Xxxx X. Xxxxxxx and Xxxxxx X. XxXxxxx shall expire.
At such annual meeting, Xxxxxxx X. XxXxxxx shall be re-appointed
to the Bank Board and shall serve until his successor shall have
been duly elected and qualified.
4.4 Wesbanco Directors. Wesbanco covenants and agrees
that as of the Effective Date it will appoint, as additional
directors of Wesbanco, Xxxxxx X. XxXxxxx and Xxxxxxx X.
Xxxxxxxxx. Such individuals shall serve until the next annual
meeting of shareholders at which time the term of Xxxxxx X.
XxXxxxx shall expire and he shall be replaced by Xxx X. XxXxxxx.
Wesbanco shall then include the said Xxxxxxx X. Xxxxxxxxx and
Xxx X. XxXxxxx on the list of nominees for the position of
director for which the Board shall solicit proxies at its next
annual meeting of shareholders until each has served at least a
full three year term. During his term on the Board, the said
Xxxxxx X. XxXxxxx shall also be appointed to the Executive
Committee. Wesbanco will take such action under its Bylaws as
is necessary to permit the said Xxxxxx X. XxXxxxx to serve as a
Director until April of 2002 with respect to its age 70
provision.
SECTION 5
SHAREHOLDER APPROVALS
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5.1 American Shareholders' Meeting. Subject to the
receipt by American of the fairness opinion described in Section
12.3(c) hereof, American shall submit the Agreement to its
shareholders in accordance with the Ohio Revised Code ("ORC") 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, American shall send to its
shareholders the Proxy Statement referred to in Section 14.1
hereof. Subject to the fiduciary duties of the Board of
Directors of American to American and its shareholders, the
Board of Directors of American shall recommend a vote in favor
of the Merger
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and shall use its best efforts to obtain at such meeting the
affirmative vote of the American shareholders required to
effectuate the transactions contemplated by the Agreement.
5.2 AB and Bank Shareholder Meetings. AB and Bank shall
promptly submit the Agreement to their shareholder, Wesbanco,
for approval in accordance with the WVCA. Wesbanco agrees to
vote, or to cause the vote of, the shares of such subsidiary
corporations in favor of the proposed transactions.
5.3 Subsidiary Shareholders Meeting. The Subsidiary shall
promptly submit the Agreement to its shareholder, American, for
approval in accordance with the laws of the United States
applicable to National Banks. American agrees to vote the
shares of such subsidiary corporation in favor of the proposed
transaction.
SECTION 6
CONVERSION OF SHARES
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6.1 Conversion, Exchange Ratio and Option. The manner of
converting or exchanging the shares of American, AB and the
Subsidiary shall be as follows:
(a) Each share of American Common Stock
issued and outstanding immediately prior to the
Effective Time, except shares of American Common
Stock issued and held in treasury of American or
beneficially owned by AB or Wesbanco, other than
in a fiduciary capacity by Wesbanco for others,
and shares as to which dissenters' rights are
exercised pursuant to Section 1701.85 of the ORC,
shall by virtue of the Merger and at the Effective
Time of the Merger be exchanged for and become,
without action on the part of the holder thereof,
1.1 shares of Wesbanco Common Stock having equal
rights and privileges with respect
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to all other common stock of Wesbanco issued and
outstanding as of the Effective Time of the Merger.
(b) No fractional shares of Wesbanco Common
Stock will be issued in connection with the
Merger. In lieu thereof each stockholder of
American otherwise entitled to a fractional share
of Wesbanco will receive cash therefore in an
amount based on a value of $22.31 per whole share
of Wesbanco stock, at the time of the exchange.
(c) In the event of any change in Wesbanco
Common Stock by reason of stock dividends, split-
ups, mergers, recapitalizations, combinations,
exchanges of shares (by Wesbanco shareholders) or
the like, the type and number of shares to be
issued pursuant to Section 6.1(a) hereof shall be
adjusted proportionately.
(d) Each share of the common stock of the
Subsidiary issued and outstanding immediately
prior to the Effective Date of the Bank Merger
shall, on the Effective Date, be converted into an
equal number of issued and outstanding shares of
the Surviving Bank Corporation.
6.2 Shares Owned by American, Wesbanco or AB. Each share
of American Common Stock issued and held in the treasury of
American or beneficially owned by Wesbanco or AB, other than in
a fiduciary capacity, at the Effective Time of the Merger shall
be canceled and no cash or other property shall be delivered in
exchange therefore.
6.3 Exchange for Stock. On and after the Effective Date
of the Merger, each holder of American Common Stock, upon
presentation and surrender of a certificate or certificates
therefore to Fifth Third Bank (the "Exchange Agent"), shall be
entitled to receive in exchange
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therefore (i) 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
fractional share of common stock which he is entitled to receive,
without interest. Until so presented and surrendered in exchange
for a certificate representing Wesbanco Common Stock, each certificate
which represented issued and outstanding shares of American 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.
6.4 Closing of Stock Transfer Books. On the Effective
Date, the stock transfer books of American shall be closed, and
no shares of American Common Stock outstanding the day prior to
the Effective Date shall thereafter be transferred.
6.5 Directors' Qualifying Shares. Immediately upon
completion of the mergers provided for above, the newly elected
Directors of Bank shall maintain at least the minimum
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number of shares of Wesbanco Common Stock as are required to be held
as directors' qualifying shares under applicable law for membership
on the Board of Directors of Bank.
SECTION 7
DISSENTERS RIGHTS
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7.1 Subject to the rights of Wesbanco and American, as
permitted by Section 12.1(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 American issued and outstanding on the date of
the shareholders' meeting described in Sections 5.1 and 14.1 of
this Agreement and entitled to vote on this Agreement
(hereinafter, "Voting Shares"), the rights and remedies of a
dissenting shareholder under the ORC shall be afforded to any
shareholder of American who objects to the Merger in a timely
manner in accordance with the ORC, and who takes the necessary
steps in a timely manner in accordance with the ORC 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 American Common Stock
who shall file written demand for payment of the fair cash value
with respect to such shares, in a timely manner in accordance
with the ORC, to the Agreement, shall not vote in favor of the
Agreement, and have made written demand for the fair cash value
of such shares within ten (10) days, in accordance with Section
1701.85 of the ORC. The Objecting Shares held by shareholders
who do not become Dissenting Shareholders shall be converted
into Wesbanco Common Stock in accordance with Section 6 hereof.
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SECTION 8
REPRESENTATIONS, WARRANTIES AND COVENANTS OF AMERICAN
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American represents and warrants to and covenants with
Wesbanco and AB, in its own right and with respect to its wholly
owned Subsidiary, that:
8.1 Organization and Qualification of American. American
is a corporation duly organized, validly existing and in good
standing under the laws of the State of Ohio 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 Subsidiary 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
American and its Subsidiary taken as a whole.
8.2 Authorization of Agreement. The Board of Directors of
American has authorized the execution of this Agreement as set
forth herein, and subject to the approval of this Agreement by
the shareholders of American as provided in the Articles of
Incorporation and Bylaws of American and applicable Ohio law,
American has the corporate power and is duly authorized to merge
with AB pursuant to this Agreement, and this Agreement is a
valid and binding agreement of American 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 No Violation of Other Instruments. Subject to
obtaining any required consent (which consents will be obtained
by American prior to Closing), the execution and delivery of
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this Agreement do not, and the consummation of the Merger and
the Bank Merger and the transactions contemplated hereby will
not, violate any provisions of American'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 American or the Subsidiary
are a party or by which they are bound. After the approval of
this Agreement by the shareholders of the common stock of
American, the Board of Directors and the shareholders of
American will have taken all corporate action required by
applicable law, the Articles of Incorporation of American, its
Bylaws or otherwise to authorize the execution and delivery of
this Agreement and to authorize the Merger of American and AB
pursuant to this Agreement.
8.4 Financial Statements. American has delivered to
Wesbanco copies of its consolidated statements of condition as
of December 31, 1999, 1998 and 1997 and the interim period ended
September 30, 2000, 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, 1999, and the interim
period ended September 30, 2000, together with the notes
thereto, accompanied by an audit report relating to the
financial statements for the three years ended December 31,
1999, of KPMG LLP, Certified Public Accountants. Such
statements, together with the related notes to all of said
financial statements, present fairly the consolidated financial
position of American and the Subsidiary 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
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statements, including the notes to the financial statements
attached thereto and subject to normal recurring year end adjustments.
8.5 Subsidiaries of American. The principal subsidiary
corporation of American is Wheeling National Bank, St.
Xxxxxxxxxxx, Ohio, a national banking association. Such
corporation is duly organized, validly existing, and in good
standing under the laws of the United States, and has the
requisite corporate power and authority to own and lease its
properties and to conduct its business as it is now being
conducted and is currently contemplated to be conducted.
American owns 100% of the issued and outstanding stock of such
corporation. All issued and outstanding shares of stock of the
Subsidiary have been fully paid, were validly issued and are
nonassessable. Its other subsidiaries include American
Bancservices, Inc., American Mortgages, Inc. ("AMI"), American
Banc Leasing and American Bancdata Corp. American owns 100% of
the issued and outstanding stock of such corporations. American
also owns 100% of American Bancorporation Capital Trust 1 (the
"Trust") and AMI owns 51% of Premier Mortgage Ltd., a joint
venture with H.E.R., Inc. All representations, warranties and
covenants of American contained herein apply to such entities
unless otherwise disclosed in the American Disclosure Schedule.
8.6 No Action, Etc. Except as disclosed in the Disclosure
Schedule of American dated not more than 30 days from the date
hereof (the "American 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 American, threatened against or relating to
American, its Subsidiary, 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 American, its Subsidiary, their
properties or against any of their officers or directors (in
their
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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 American or its Subsidiary or the ability of American or its
Subsidiary to conduct their business as presently conducted or
to consummate the transactions contemplated hereby, and American
does not know of any basis for any such action or proceeding.
Except as disclosed in the American Disclosure Schedule,
American and its Subsidiary 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 American nor its Subsidiary is
transacting business in material violation of any applicable
law, ordinance, requirement, rule, regulation or order.
8.7 Capitalization. The authorized capital stock of
American consists of 6,700,000 shares, consisting of 6,500,000
shares of common stock, without par value, of which 3,129,674
shares are duly authorized, validly issued and outstanding and
are fully paid and nonassessable as of the date hereof, and
200,000 shares of preferred stock, par value of $100.00 per
share, 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, American
Common Stock, except as provided in the Option Agreement dated
the date hereof to be issued in accordance with this Agreement.
American has sufficient authorized common stock to issue to
Wesbanco if the Option Agreement dated the date hereof is
exercised by Wesbanco.
8.8 Copies of All Contracts, Leases, Etc. American has
furnished, or provided access, to Wesbanco true and complete
copies of all material contracts, leases and other agreements to
which American is a party or by which it is bound and of all
employment,
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pension, retirement, stock option, profit sharing,
deferred compensation, consultant, bonus, group insurance or
similar plans with respect to any of the directors, officers or
other employees of American and its Subsidiary. A list of all
such documents is set forth in the American Disclosure Schedule,
and as updated on the Effective Date.
8.9 Materially Adverse Contracts. Neither American nor
its Subsidiary is 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 American and its Subsidiary 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 American or
its Subsidiary are a party that would have a material adverse
effect upon the financial condition, operations, results of
operations, business or prospects of American and its Subsidiary
taken as a whole.
8.10 Undisclosed Liabilities. American and its Subsidiary
have no material liabilities other than those liabilities
disclosed on or provided for in the financial statements
delivered pursuant to Section 8.4 hereof, or as disclosed in the
American Disclosure Schedule attached hereto and made a part
hereof.
8.11 Title to Properties. Except for capitalized leases,
liens and encumbrances not material to the property, liens and
encumbrances on property acquired by American and its Subsidiary
in foreclosure of loans and existing at the time of foreclosure,
American and its Subsidiary have good and marketable title to
all of the property, interests in properties and other assets,
real and personal, set forth in their consolidated balance sheet
as of December 31, 1999, 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
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the financial statements delivered pursuant to Section 8.4 hereof,
and all of their material leases are in full force and effect
and neither American nor its Subsidiary is 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 their fair value in accordance with
SFAS No. 115. All material real and tangible personal property
owned by American or its Subsidiary and used or leased by
American or its Subsidiary 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,
Ohio and Pennsylvania.
8.12 Proxy Statement. The Proxy Statement referred to in
Section 14 or any amendment or supplement thereto mailed to the
holders of the common stock of American will not contain any
untrue statement of a material fact concerning American or omit
to state a material fact concerning American 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 American, and will comply,
as to form in all material respects, with the requirements of
the United States and Ohio securities laws and any other
applicable Blue Sky Laws.
8.13 ERISA. Except as disclosed in the American 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 American, or its
Subsidiary, (hereinafter collectively 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
19
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 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.
8.14 Exchange Act Reports. American has delivered to
Wesbanco true and correct copies of its Form 10-K (Annual
Report) for the year ended December 31, 1999, and its Form 10-Q
(Quarterly Report) for the quarter ended September 30, 2000, as
filed with the SEC, all of which were prepared and filed in
accordance with the applicable requirements and regulations of
20
the SEC. American has also delivered to Wesbanco true and
correct copies of all documents and reports filed by American
with the SEC pursuant to the Exchange Act since January 1, 2000
(the "American Reports"). American 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 American 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.
8.15 Labor Disputes. Neither American nor its Subsidiary
is 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 American or the employees of its
Subsidiary, and no petition for election of any collective
bargaining representative has been filed and to the knowledge of
American and its Subsidiary no organizational campaign on behalf
of any collective bargaining unit has been undertaken by or on
behalf of the employees of American or its Subsidiary.
8.16 Reserve for Possible Loan Losses. The reserve for
possible loan losses shown on the consolidated balance sheets of
American and its Subsidiary as of December 31, 1999, and the
interim period ending September 30, 2000, delivered pursuant to
this Agreement, which financial statements are attached to the
American Disclosure Schedule, are adequate in all material
respects as of the respective dates thereof.
8.17 Taxes. Except as disclosed in the American Disclosure
Schedule:
21
(a) American and its Subsidiary 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 American or its Subsidiary, 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 American or its Subsidiary,
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 American or its Subsidiary 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 Ohio
Franchise Tax Returns of American or its
Subsidiary, and, except for tax years still
subject to the assessment and collection of
additional Franchise Taxes under the applicable
period of
22
limitations prescribed in the ORC, no
tax year of American or its Subsidiary remains
open to the assessment and collection of
additional Ohio Franchise Taxes.
(e) American, and its Subsidiary, have
properly accrued and reflected on their December 31,
1999, consolidated balance sheet, delivered
pursuant to Section 8.4 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 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.
8.18 Absence of Certain Changes. Except as may be
disclosed in the American Disclosure Schedule, or except in
connection with the transactions contemplated by this Agreement,
since December 31, 1999:
(a) There has been no change in the material
assets, financial condition or liabilities
(contingent or otherwise), business, or results of
operations of American and its Subsidiary which
has had, or changes which
23
in the aggregate have had, a materially adverse effect
on such material assets, financial condition or results of
operations of American and its Subsidiary 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 American or its Subsidiary taken as
a whole;
(c) Other than in the ordinary course of
business, neither American nor its Subsidiary has
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
American except as provided for in this Agreement,
or any material change in the outstanding debt of
American or its Subsidiary, 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, American 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;
24
(f) American and its Subsidiary have, and
shall have at Closing, personnel sufficient to
adequately staff all key positions within their
respective operations. Other than as disclosed by
American, there has not been any material increase
in the compensation or fees payable by American or
its Subsidiary 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 American or its Subsidiary,
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 American or
its Subsidiary;
(g) Neither American nor its Subsidiary has
made any material loan or advance other than in
the ordinary course of business;
(h) Neither American nor its Subsidiary has
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 American nor its Subsidiary has
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;
(j) There has not been any other event,
condition or development of any kind which
materially and adversely affects the
25
material assets, financial condition or results of
operations of American or its Subsidiary, taken as
a whole, and neither American nor its Subsidiary
has knowledge of any such event, condition or
development which may materially and adversely
affect the assets, financial condition or results
of operations of American and its Subsidiary,
taken as a whole.
8.19 Fidelity Bonds. The Subsidiary has continuously
maintained a fidelity bond insuring it against acts of
dishonesty by 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, 2000, there have been no
claims under such bond and, except as disclosed in the American
Disclosure Schedule, neither American nor its Subsidiary is
aware of any facts which would form the basis of a claim under
such bonds. Neither American nor its Subsidiary has any reason
to believe that its fidelity coverage will not be renewed by the
applicable carrier on substantially the same terms as its
existing coverage.
8.20 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, American
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) 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;
26
(d) Declare or pay any dividends or other
distributions on any shares of common stock other
than its regular quarterly dividend of fifteen
cents ($.15) per share consistent with past
practice.
(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 8.18(f)
above and except for any amendments required by
law, enter into or amend any employment, pension,
retirement, stock option, profit sharing, 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 American 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 American or its Subsidiary, 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
27
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 8.18(f) and 8.20(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.
8.21 Additional Covenants. Except as otherwise
contemplated by this Agreement, American covenants and agrees:
(a) That it will promptly advise Wesbanco in
writing of the name and address of, and the number
of shares of American stock held by, each
stockholder who elects to exercise his or her
appraisal rights pursuant to Section 1701.85 of
the ORC;
(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
American 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
28
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) American will not, and will not permit
any person acting on behalf of American or its
Subsidiary 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,
American or its Subsidiary, or any tender or
exchange offer (or proposal to make any tender or
exchange offer) for any shares of stock of
American, or any proposal to acquire more than 5%
of the outstanding shares of stock of American or
any options, warrants or rights to acquire, or
securities convertible into or exchangeable for,
more than 5% of the outstanding shares of stock of
American. Notwithstanding the provisions of this
Subsection (d), American shall not be prohibited
from furnishing information to, or entering into
discussions, negotiations or an agreement with,
any person or entity which makes an unsolicited
acquisition proposal if and to the extent that (i)
the Board of Directors of American, after
consultation with and based on the advice of
counsel, determines in good faith that such action
is required to fulfill its fiduciary duties to the
shareholders of American under applicable law and
(ii) before furnishing such information to, or
entering into discussions or negotiations with,
such person or entity, American provides immediate
written notice to Wesbanco of such action;
29
(e) To promptly advise Wesbanco of any
material adverse change in the financial
condition, assets, businesses or operations of
American or its Subsidiary, taken as a whole, or
any material changes or inaccuracies in data
provided to Wesbanco pursuant to this Agreement;
(f) To maintain in full force and effect its
and its Subsidiary's present fire, casualty,
public liability, employee fidelity and other
insurance coverages or replacement insurance
coverage at substantially the same premium and
insurance levels;
(g) To cooperate with Wesbanco in furnishing
such information concerning the business and
affairs of American, its Subsidiary and their
respective 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 American by
Wesbanco as contemplated hereunder. Consistent
with its fiduciary duties, American 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 8.3 hereof; and
(h) To cooperate with Wesbanco in furnishing
such information concerning the business of
American and its Subsidiary as is reasonably
30
necessary or requested in order to prepare and
file any Proxy Statement to be prepared in
connection with the Merger as provided in Section
14 hereof.
8.22 Repurchase Agreements. With respect to any agreement
pursuant to which American or its Subsidiary have purchased
securities subject to an agreement to repurchase, American and
its Subsidiary have a valid, perfected first lien or security
interest in or evidence of ownership in book entry form of the
government securities or other collateral securing the
repurchase agreement, and the value of such collateral equals or
exceeds the amount of the debt secured thereby.
8.23 Risk Management Instruments. All material interest
rate swaps, caps, floors, option agreements, mortgage backed
securities, futures and forward contracts and other similar risk
management arrangements, whether entered into for American's or
Subsidiary's own account, or for the account of one or more of
its customers, were entered into (A) in accordance with prudent
business practices and all applicable laws, rules, regulations
and regulatory policies and (B) with counter-parties believed to
be financially responsible at the time; and each of them
constitutes the valid and legally binding obligation of American
or its Subsidiary, enforceable in accordance with its terms, and
is in full force and effect. American and its Subsidiary are
not, nor to American's knowledge is any other party thereto, in
breach of any of its obligations under any such agreement or
arrangement.
SECTION 9
REPRESENTATIONS, WARRANTIES AND COVENANTS OF WESBANCO AND AB
------------------------------------------------------------
Wesbanco and AB represent and warrant to American and
covenant with American that:
9.1 Corporate Organization of Wesbanco and Subsidiaries.
Wesbanco is, and upon execution hereof AB will be, a corporation
duly organized, validly existing and in good
31
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 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 AB, is a West Virginia, Ohio or Delaware
corporation, duly organized and validly existing in good
standing under the laws of Ohio, Delaware or West Virginia, 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 AB and the Wesbanco Subs are
held, beneficially and of record, by Wesbanco and have been or,
as to AB, 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 AB or any of the Wesbanco Subs or securities
convertible into shares of stock of AB or any of the Wesbanco
Subs.
9.2 Authorization of Agreement. 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, Wesbanco has the corporate power
and is duly authorized to execute and deliver this Agreement and
consummate the transactions contemplated herein, 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
32
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 AB and Bank and subject to the approval hereof by
Wesbanco as their sole shareholder, AB and Bank have the
corporate power to execute and deliver this Agreement and have
taken all action required by law, their Articles of
Incorporation, their Bylaws or otherwise to authorize and
approve such execution and delivery, the performance of the
Agreement, the Merger, the Bank Merger and the consummation of
the transactions contemplated hereby; and this Agreement is a
valid and binding agreement of AB and Bank 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.
9.3 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, for the benefit of
the shareholders of American, an amount of common stock and cash
sufficient to meet the necessary amount of securities and cash
into which such common stock shall have been converted pursuant
to Section 6.
9.4 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 Bank 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,
33
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.
9.5 Application for AB. Wesbanco shall cause to be filed
with the West Virginia Secretary of State an application to
organize and incorporate AB 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 AB by the Secretary of State of
West Virginia, Wesbanco shall cause AB and Bank to execute and
enter into this Agreement and cause AB and Bank to take such
action as is provided in this Agreement on their part to be
taken.
9.6 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.
9.7 Exchange Act Reports. Wesbanco has delivered to
American true and correct copies of its Form 10-K (Annual
Report) for the year ended December 31, 1999, and its Form 10-Q
(Quarterly Report) for the quarter ended September 30, 2000, 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 American true and
correct copies of all documents and reports filed by Wesbanco
with the SEC pursuant to the Exchange Act since January 1, 2000
(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
34
fact necessary to make the statements therein not
misleading in light of the circumstances under which they were
made.
9.8 Subsidiaries of Wesbanco. In addition to AB, the
subsidiaries of Wesbanco are Wesbanco Bank, Inc., a West
Virginia banking corporation, CBI Corporation, a West Virginia
corporation, Vandalia National Corporation, a Delaware
corporation, Wesbanco Securities, Inc., an Ohio corporation,
Wesbanco Insurance Services, a West Virginia corporation,
Hometown Finance Company, a West Virginia corporation, and FBI
Corporation, 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.
9.9 Registered Bank Holding Company. Wesbanco is a duly
registered bank holding company under the Bank Holding Company
Act of 1956, as amended.
9.10 Authority to Issue Shares. The shares of common stock
to be issued by Wesbanco pursuant to this Agreement will be duly
authorized by all necessary corporate action 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 to be issued
in the transaction contemplated in this Agreement.
9.11 Financial Statements. Wesbanco has delivered to
American copies of its consolidated balance sheets as of
December 31, 1997, 1998 and 1999 and the interim period ended
September 30, 2000, and its consolidated statements of income,
consolidated statements of changes in shareholders' equity and
consolidated statements of changes in financial position for
35
the three (3) year period ended December 31, 1999, and the interim
period ended September 30, 2000, 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.
9.12 No Action, Etc. Except as disclosed in the Wesbanco
Disclosure Schedule, dated not more than 30 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
36
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.
9.13 Capitalization. The authorized capital stock of
Wesbanco consists of 50,000,000 shares of common stock, par
value of $2.0833 per share, of which 18,727,118 shares are duly
authorized, validly issued and outstanding (as of September 30,
2000) 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
disclosed on the Wesbanco Disclosure Schedule. Wesbanco has
also executed an Agreement and Plan of Merger with Freedom
Bancshares, Inc. dated December 29, 2000, which provides for the
issuance of up to an additional 490,200 shares.
Upon execution hereof by AB, the authorized capital stock
of AB consists of 100 shares of common stock, par value of
$25.00 per share, all of which 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 AB Common Stock.
9.14 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 9.11 of this Agreement, or on the
Wesbanco Disclosure Schedule.
37
9.15 Title to Properties. Except for capitalized leases
and liens and encumbrances not material to the property and
liens and encumbrances on property acquired by 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, 1999, and applicable interim periods, or
acquired since that date, subject to no material liens,
mortgages, pledges, 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 their
fair value in accordance with SFAS No. 115. 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 States of West
Virginia and Ohio.
9.16 Registration Statement. The Registration Statement
referred to in Section 14.2 of this Agreement or any amendment
or supplement thereto mailed to the holders of the common stock
of American 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 the United
States and West Virginia securities laws and any other
applicable Blue Sky laws.
38
9.17 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 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 First Fidelity Bancorp,
Inc., 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 First Fidelity Bancorp, Inc., 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
39
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 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
40
Descriptions) have been appropriately filed with the government
or distributed to participants with respect to each Plan.
9.18 Labor Disputes. Except as disclosed in the Wesbanco
Disclosure Schedule, 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 affect their financial condition, assets,
businesses or operations taken as a whole. No collective
bargaining representatives represent employees of Wesbanco, AB
or the Wesbanco Subs, 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 behalf of any collective bargaining unit has been
undertaken by or on behalf of any Wesbanco, AB or Wesbanco Subs
employees.
9.19 Reserve for Possible Loan Losses. The reserve for
possible loan losses shown on the consolidated balance sheet of
Wesbanco and its subsidiaries as of December 31, 1999, and the
interim period ending September 30, 2000, delivered pursuant to
this Agreement are adequate in all material respects as of the
respective dates thereof.
9.20 Taxes. Except as 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 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
41
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 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,
no tax year of Wesbanco or any of its subsidiaries
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,
1999, consolidated balance sheet, delivered
42
pursuant to Section 9.11 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.
9.21 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, 1999:
(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 materially adverse effect on the material
assets, financial 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;
43
(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 as disclosed in the Wesbanco Disclosure
Schedule, 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 for the purchases of its common
stock pursuant to its previously announced stock
repurchase programs, 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;
44
(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 65% 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 American 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
45
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.
9.22 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, 2000, there
have been no claims under such bonds (except as disclosed in the
Wesbanco Disclosure Schedule) and, except as disclosed in
writing to American, 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.
9.23 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 AB's or Bank'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 American;
46
(b) To deliver to American 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 American 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 American pursuant to this Agreement or any
"acquisition proposal" with respect to Wesbanco
received by Wesbanco;
(d) To cooperate with American 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 American 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 9.4 hereof;
and
(e) To cooperate with American in furnishing
such information concerning the business of
Wesbanco and its subsidiaries as is reasonably
47
necessary or requested in order to prepare any
Proxy Statement to be prepared in connection with
the Merger.
9.24 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 to
be authorized and issued in the transaction contemplated in this
Agreement.
9.25 Repurchase Agreements. With respect to any agreement
pursuant to which Wesbanco or the Wesbanco Subs have purchased
securities subject to an agreement to repurchase, Wesbanco and
the Wesbanco Subs have a valid, perfected first lien or security
interest in or evidence of ownership in book entry form of the
government securities or other collateral securing the
repurchase agreement, and the value of such collateral equals or
exceeds the amount of the debt secured thereby.
9.26 Risk Management Instruments. All material interest
rate swaps, caps, floors, option agreements, mortgage backed
securities, futures and forward contracts and other similar risk
management arrangements, whether entered into for Wesbanco's or
the Wesbanco Subs' own account, or for the account of one or
more of its customers, were entered into (A) in accordance with
prudent business practices and all applicable laws, rules,
regulations and regulatory policies and (B) with counter-parties
believed to be financially responsible at the time; and each of
them constitutes the valid and legally binding obligation of
Wesbanco or the Wesbanco Subs enforceable in accordance with its
terms, and is in full force and effect.
48
Wesbanco and the Wesbanco Subs are not, nor to Wesbanco's knowledge is
any other party thereto, in breach of any of its obligations under any
such agreement or arrangement.
SECTION 10
INVESTIGATION
-------------
Subject to the conditions set forth in this Section 10,
prior to the Effective Time, Wesbanco and American may directly
and through their representatives, make such investigation of
the assets and business of Wesbanco and American and their
subsidiaries as each deems necessary or advisable. Wesbanco and
American and their representatives, including, without
limitation, their accountants and investment advisors, shall
have, at reasonable times after the date of execution by
Wesbanco and American 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 American and by
American and its authorized representatives from Wesbanco shall
be held in strict confidence by such party and its authorized
representatives, and neither party nor its
49
authorized representatives will use such data or information or
disclose the same to others except with the written permission of the
other party.
SECTION 11
NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES
----------------------------------------------
The representations and warranties included or provided
herein shall not survive the Effective Date.
SECTION 12
CONDITIONS PRECEDENT; CLOSING DATE AND EFFECTIVE DATE
-----------------------------------------------------
12.1 Conditions Precedent of Wesbanco and American. The
consummation of this Agreement by Wesbanco and American and the
Merger is conditioned upon the following:
(a) The shareholders of American, Wesbanco,
AB and Bank 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 AB as a West
Virginia corporation, the Merger and the Bank
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 00X-
0X- 0(x), have entered an order disapproving the
acquisition of American by Wesbanco pursuant to
this Agreement;
(c) The Secretary of State of West Virginia
shall have issued a Certificate of Incorporation
for AB;
(d) The Board of Governors of the Federal
Reserve System shall have approved the application
of Wesbanco to acquire American; the
50
Merger of AB pursuant to this Agreement; and the merger of the
Subsidiary with and into the Bank;
(e) The Registration Statement of Wesbanco
shall 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 American 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
transactions 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, American, AB and Bank shall
have received, in form and substance satisfactory
to Wesbanco's and American'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
51
in addition, Wesbanco and American shall have received
any and all consents required with respect to the documents
described pursuant to Section 8.3 and Section 9.4 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 the
Bank Merger and this Agreement shall have expired;
(i) Unless waived by Wesbanco and American,
the holders of not more than ten percent (10%) of
the outstanding common stock of American shall
have made written demand for the fair cash value
in accordance with ORC, not have voted in favor of
the Agreement at the special meeting of American
shareholders referred to in Section 14.1 hereof
and have otherwise exercised such dissenters'
rights pursuant to Section 1701.85 of the ORC;
(j) On or before the Closing Date, there
shall have been received from the Internal Revenue
Service a ruling or rulings, or, at the option of
American, in lieu thereof, an opinion from counsel
for American substantially to the effect that for
Federal Income Tax purposes:
(i) The statutory merger of
American with AB and the statutory
merger of the Subsidiary with Bank will
each constitute a reorganization within
the meaning of Section 368(a)(1) of the
Internal Revenue Code of 1986 ("IRC"),
and Wesbanco, American, AB and Bank
will each be a "party to a
reorganization" as defined in IRC
Section 368(b);
52
(ii) No gain or loss will be
recognized by Wesbanco, American, AB or
Bank as a result of the transactions
contemplated in the Agreement;
(iii) No gain or loss will be
recognized by the shareholders of
American as a result of their exchange
of American's Common Stock for
Wesbanco's 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 American Common Stock will
include the period during which the
stock of American 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 American 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 American 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 or the Bank 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).
53
(l) The approvals referred to in
subparagraphs (b) and (d) of Subsection 12.1
herein shall not have required the divestiture or
cessation of any significant part of the present
operations conducted by Wesbanco, American 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.
12.2 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 American
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 American and its Subsidiary taken
as a whole, or which are the result of expenses or
transactions contemplated or permitted by the
Agreement; and American shall have performed in
all material respects all of its obligations and
agreements hereunder theretofore to be performed
by it; and Wesbanco and AB shall have received on
the Effective Date an appropriate certificate (in
affidavit form) dated the Effective Date and
executed on behalf of American by one or more
appropriate executive officers of American to the
54
effect that such officers have no knowledge of the
nonfulfillment of the foregoing condition;
(b) Opinion of American Counsel. An opinion
of Xxxxxx X. Xxxxxxxxxxx, counsel for American,
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) American is a corporation
duly organized, validly existing and in
good standing under the laws of the
State of Ohio 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 Subsidiary, 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 American and
its Subsidiary, taken as a whole.
(ii) American has the full
corporate power to execute and deliver
the Agreement. All corporate action of
American required to duly authorize the
Agreement and the actions contemplated
thereby has been taken, and the
Agreement is valid and binding on
American in accordance with its terms,
subject, as to the enforcement of
remedies, to applicable bankruptcy,
insolvency, reorganization, fraudulent
conveyance, receivership, moratorium,
or other similar laws affecting the
enforcement of creditors' rights
generally from time to time in effect,
whether state or federal; subject to
application of the public policy of the
State of West Virginia; and subject to
any equitable principles limiting the
right to obtain specific performance of
certain obligations thereunder, whether
such enforcement is considered in a
proceeding in equity or at law.
(iii) All shares of common
stock of American issued and
outstanding as of the Effective Date
are duly authorized, validly issued,
fully paid and nonassessable.
55
(iv) The consummation of the
Merger and the Bank Merger contemplated
by the Agreement will not violate any
provision of American's or the
Subsidiary'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 American 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 American is subject, which would
have a materially adverse effect on the
assets, business or operations of
American, taken as a whole.
(v) American's Subsidiary is a
national banking association and is
duly organized, validly existing and in
good standing under the laws of the
United States, and it has the requisite
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 American owns 100%
of the issued and outstanding stock of
such corporation.
(vi) To the best of such counsel's
knowledge, as of the date hereof
neither American nor its Subsidiary was
involved in any litigation against them
(with possible exposure of $100,000.00
or more), pending or threatened.
(c) Xxxxxx X. XxXxxxx and Xxxx X. Xxxxxxx
shall have resigned as officers of American and
its Subsidiary, which resignations shall be dated
as of the Closing Date, shall have each executed
severance plan clarification agreements in form
and substance satisfactory to Wesbanco and have
executed Consulting Agreements in form and
substance satisfactory to Wesbanco. Xxxxx X.
Xxxxxxxx and Xxxx X. Wait shall have duly
executed and delivered the employment agreements
with the Bank, dated as of the Closing Date, in
substantially the form attached hereto as Exhibits
____ and _____, and Xxxxx X. Xxxxxxxx and Xxxx X.
Wait shall
56
each have executed severance plan
clarification agreements and Xxxxxxx X. X'Xxxxx
shall have executed an Amendment to Employment
Agreement, each in form and substance satisfactory
to Wesbanco.
(d) American shall have delivered to
Wesbanco a schedule identifying all persons who
may be deemed to be "affiliates" of American
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) American shall have furnished Wesbanco
with a certified copy of resolutions duly adopted
by the Board of Directors and the shareholders of
American approving the Agreement and authorizing
the Merger and the transactions contemplated
hereby.
(f) Unless waived by Wesbanco, on the
Closing Date, there shall not be pending against
American or its Subsidiary or the officers or
directors of American or its Subsidiary in their
capacity as such, any suit, action or proceeding
which, in the reasonable judgment of Wesbanco, if
successful, would have material adverse effect on
the financial condition or operations of American
or its Subsidiary.
(g) American shall have executed and
delivered to Wesbanco a Stock Option Agreement,
substantially in the form attached hereto as
Exhibit B, dated the date of this Agreement, and
incorporated herein by reference.
57
12.3 Conditions Precedent of American. The consummation of
this Agreement by American and the Merger is also conditioned
upon the following:
(a) Unless waived by American the
representations and warranties of Wesbanco and AB
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 American or which
are not in the aggregate material and adverse to
the financial condition, businesses, properties or
operations of Wesbanco and AB or which are the
result of expenses or transactions contemplated or
permitted by this Agreement, and Wesbanco and AB
shall have performed in all material respects all
of their obligations and agreements hereunder
theretofore to be performed by them; and American
shall have received on the Effective Date an
appropriate certificate (in affidavit form) dated
the Effective Date and executed on behalf of
Wesbanco and AB by one or more appropriate
executive officers of each of them to the effect
that such officers have no knowledge of the
nonfulfillment of the foregoing conditions;
(b) Opinion of Wesbanco Counsel. An opinion
of Phillips, Gardill, Xxxxxx & Xxxxxxxx, counsel
for Wesbanco, shall have been delivered to
American, dated the Closing Date, and in form and
substance satisfactory to American and its
counsel, to the effect that:
(i) Wesbanco, AB and Bank are
corporations duly organized, validly
existing and in good standing under
58
the laws of the State of West Virginia and
have the full 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, AB
and Bank, taken as a whole.
(ii) Wesbanco, AB and Bank have
the full corporate power to execute and
deliver the Agreement. All corporate
action of Wesbanco, AB and Bank
required to duly authorize the
Agreement and the actions contemplated
thereby have been taken, and the
Agreement is valid and binding on
Wesbanco, AB and Bank 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) The consummation of the
mergers contemplated by the Agreement
will not violate any provision of
Wesbanco's, AB's or Bank'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, AB or Bank are a party or by
which they are bound, and will not
violate or conflict with any other
material restriction of any kind or
character known to such counsel to
which Wesbanco, AB or Bank are subject
which would have a material adverse
effect on the assets, business or
operations of Wesbanco, AB and Bank
taken as a whole.
(iv) 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 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,
58
Wesbanco owns 100% of the issued and
outstanding stock of each such
corporation.
(v) 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 American.
(vi) The shares of Wesbanco Common
Stock to be issued to American's
shareholders pursuant to the Agreement,
when issued as described therein, will
be duly authorized, validly issued,
fully paid and nonassessable.
(c) McDonald Investments Inc., financial
advisors to American, shall have furnished to
American 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 14.1 of this
Agreement, to the effect that the exchange ratio
is fair, from a financial point of view, as of
such date, to the shareholders of American.
(d) Wesbanco, AB and Bank shall have
furnished American with certified copies of
resolutions duly adopted by the Boards of
Directors of Wesbanco, AB and Bank and the
shareholders of Wesbanco, AB and Bank approving
the Agreement and authorizing the Merger, the Bank
Merger and transactions contemplated hereby.
(e) Unless waived by American, 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
60
American, if successful, would have a
material adverse effect on the financial condition
or operations of Wesbanco or any of its
subsidiaries.
12.4 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 second business day after the
meetings of the shareholders of American or
Wesbanco, whichever is later, at which the
Agreement is approved;
(b) The fifteenth (15th) day after the
approval of the acquisition of American by the
Board of Governors of the Federal Reserve System
(the "Federal Reserve Board");
(c) The fifteenth (15th) day after the
approval of the Bank Merger by the Federal Reserve
Board;
(d) The day after any stay of the Federal
Reserve Board's approval of the acquisition of
American or the approval of the Bank Merger shall
be vacated or shall have expired or the day after
any injunction against the closing of the Merger
or the Bank Merger shall be lifted, discharged or
dismissed;
(e) The day after the approval of the
acquisition of American by the West Virginia
Department of Banking is received by Wesbanco;
(f) The second business day after the date
on which the last condition set forth in Section
12 is satisfied or waived;
61
(g) Such other date as shall be mutually
agreed to by Wesbanco and American.
The Closing shall be held in Wheeling, 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,
and the Bank Merger, shall be filed with the Secretary of State
of West Virginia.
12.5 Effective Date. The Merger, and the Bank Merger,
shall become effective (the "Effective Date") on the date on
which the Certificates of Merger approving the mergers are
issued by the Secretary of State of West Virginia. The
surviving corporations shall record said Certificates of Merger
in the office of the Clerk of the County Commission of Ohio
County.
SECTION 13
TERMINATION OF AGREEMENT
------------------------
13.1 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 American:
(a) By mutual consent of American and
Wesbanco;
(b) By either American 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 American or Wesbanco if
the Merger shall violate any nonappealable
final order, decree or judgment of any court
or governmental body having competent
jurisdiction;
62
(d) By American or Wesbanco, if the
Closing Date has not occurred by December 31, 2001;
(e) By American, unless waived by American,
if the Market Value of Wesbanco stock shall fall
below Sixteen Dollars ($16.00) 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 Stock
Market) for the 30 calendar days preceding five
business days before the Closing.
(f) By either party in the event that
the shareholders of American or Wesbanco
vote against consummation of the Merger.
13.2 Effect of Terminating; Right to Proceed. In the event
this Agreement shall be terminated pursuant to Section 13.1, all
further obligations of Wesbanco and American under this
Agreement, except Sections 10, 13.1, 13.2 and 20 hereof, shall
terminate without further liability of Wesbanco and AB to
American or of American to Wesbanco and AB.
13.3 Return of Documents in Event of Termination. In the
event of termination of this Agreement for any reason, Wesbanco
and American 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 10 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.
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SECTION 14
MEETING OF SHAREHOLDERS OF AMERICAN
-----------------------------------
14.1 Subject to receipt by American of the fairness opinion
described in Section 12.3(c) hereof, American 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 American 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 American or omit to state a material fact with
respect to American 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.
14.2 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 of American. Accordingly, Wesbanco and American agree
to assist and cooperate fully with each other in the preparation
of the Registration Statement. Both American 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
American, as the case may be, set forth in the Registration
Statement, are
64
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 15
BROKERS
-------
American represents and warrants to Wesbanco and Wesbanco
represents and warrants to American 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 American to
McDonald Investments Inc., its financial advisor.
SECTION 16
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 American when
one or more counterparts shall have been signed and delivered by
Wesbanco and American and shall become effective and binding as
to AB when AB 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 American and
Wesbanco relating to the subject matter hereof.
65
SECTION 17
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 18
NOTICES
-------
Except as specifically provided in Section 8.21(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 American:
American Bancorporation
0000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
ATTENTION: Xxxxxx X. XxXxxxx, Chairman
With copies to:
Xxxxxx X. Xxxxxxxxxxx, Esq. Xxxxx X. Xxxxxxx, Esq.
0000 Xxxxxxx Xxxxxx Xxxxxxx & Xxxx
Xxxxxxxx, XX 00000 0000 Xxxxxxxxx Xxx.,X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
To Wesbanco:
Wesbanco, Inc.
Xxx Xxxx Xxxxx
Xxxxxxxx, XX 00000
ATTENTION: Xxxxxx X. Xxxxxx, President
66
With a copy to:
Xxxxx X. Xxxxxxx, Esq.
Phillips, Gardill, Xxxxxx & Xxxxxxxx
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
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 19
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
American 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 exchange
ratio per share at which each share of common stock of American
shall be converted and any other material terms of the Merger
shall not be amended after the meeting of American 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 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.
67
SECTION 20
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 21
MISCELLANEOUS
-------------
21.1 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.
21.2 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.
21.3 Material Adverse Change. In determining whether there
has been a material adverse change for purposes of this
Agreement, transaction costs and expenses (i.e. accounting,
legal and investment banking fees) of the transactions
contemplated hereby shall not be taken into account.
21.4 Binding Date. This Agreement is effective and binding
as to Wesbanco and American upon the date first above written
and effective and binding as to AB upon execution hereof by AB.
IN WITNESS WHEREOF, WESBANCO, INC., AMERICAN
BANCORPORATION, AB CORPORATION and WESBANCO BANK, INC. have each
68
caused this Agreement to be executed on their behalf by their
officers thereunto duly authorized all as of the day and year
first above written.
WESBANCO, INC., a West Virginia
corporation
By /s/ Xxxxxx X. Xxxxxx
--------------------
Its President & Chief Executive Officer
(SEAL)
ATTEST:
/s/ Xxxxx X. Xxxxxxx
--------------------
Secretary
AMERICAN BANCORPORATION,
an Ohio corporation
By /s/ Xxxxxx X. XxXxxxx
---------------------
Its Chairman
(SEAL)
ATTEST:
/s/ Xxxxx Xxxxxxx
-----------------
Secretary
AMERICAN BANCORPORATION
By /s/Xxxxxx X. XxXxxxx
---------------------
Xxxxxx X. XxXxxxx
Chairman and Chief Executive Officer
By /s/Xxxx X. Xxxxxxx
------------------
Xxxx X. Xxxxxxx, Director
69
By /s/Xxxx X. Xxxxxxx
------------------
Xxxx X. Xxxxxxx, Director
By /s/Xxxxxxx XxXxxxx Feinkopf
----------------------------
Xxxxxxx XxXxxxx Feinkopf, Director
By /s/Xxx X. XxXxxxx
------------------
Xxx X. XxXxxxx, Director
By /s/ Xxxxxx X. XxXxxxx
---------------------
Xxxxxx X. XxXxxxx, Director
By /s/Xxxxxxx X. XxXxxxx
---------------------
Xxxxxxx X. XxXxxxx, Director
By /s/ Xxxx X. Xxxxx, Xx.
----------------------
The Xxxxxxxxx Xxxx X. Xxxxx, Xx.,
Director
(SEAL)
ATTEST:
/s/ Xxxxx Xxxxxxx
-----------------
Secretary
AB CORPORATION, a West Virginia
corporation as of the ____ day of _______,
2001.
By__________________________________
Its _______________________
(SEAL)
ATTEST:
___________________________
Secretary
70
WESBANCO BANK, INC., a West Virginia
corporation
By /s/ Xxxxxx X. Xxxxxx
-------------------------
Its President & Chief Executive Officer
(SEAL)
ATTEST:
/s/ Xxxxxxx X. Xxxxxx
---------------------
Secretary
