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EXHIBIT 2.3
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
RIVA BANCSHARES, INC.
AND
PREMIER BANCSHARES, INC.
DATED AS OF JULY 29, 1999
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TABLE OF CONTENTS
PAGE
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ARTICLE 1
TRANSACTIONS AND TERMS OF MERGER
1.1 Merger.................................................................................1
1.2 Time and Place of Closing..............................................................2
1.3 Effective Time.........................................................................2
ARTICLE 2
TERMS OF MERGER
2.1 Certificate of Incorporation...........................................................2
2.2 Bylaws.................................................................................2
2.3 Directors..............................................................................2
2.4 Premier Directors......................................................................2
ARTICLE 3
MANNER OF CONVERTING SHARES
3.1 Conversion of Shares...................................................................3
3.2 Anti-Dilution Provisions...............................................................4
3.3 Shares Held by Premier.................................................................4
3.4 Fractional Shares......................................................................4
ARTICLE 4
EXCHANGE OF SHARES
4.1 Exchange Procedures....................................................................4
4.2 Rights of Former Premier Shareholders..................................................5
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PREMIER
5.1 Organization, Standing, and Power......................................................6
5.2 Authority; No Breach by Agreement......................................................6
5.3 Capital Stock..........................................................................7
5.4 Premier Subsidiaries...................................................................7
5.5 Regulatory Filings; Financial Statements...............................................8
5.6 Notes and Obligations. ................................................................8
5.7 Absence of Certain Changes or Events...................................................8
5.8 Tax Matters............................................................................8
5.9 Assets.................................................................................9
5.10 Environmental Matters.................................................................10
5.11 Compliance With Laws..................................................................10
5.12 Labor Relations.......................................................................11
5.13 Employee Benefit Plans................................................................11
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5.14 Material Contracts....................................................................13
5.15 Legal Proceedings.....................................................................13
5.16 Reports...............................................................................14
5.17 Statements True and Correct...........................................................14
5.18 Accounting, Tax and Regulatory Matters................................................14
5.19 Anti-Takeover Provisions..............................................................14
5.20 Derivatives Contracts.................................................................14
5.21 Year 2000.............................................................................15
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF RIVA BANCSHARES
6.1 Organization, Standing, and Power.....................................................15
6.2 Authority; No Breach By Agreement.....................................................15
6.3 Capital Stock.........................................................................16
6.4 Riva Bancshares Subsidiaries..........................................................16
6.5 Financial Statements..................................................................16
6.6 Absence of Certain Changes or Events..................................................17
6.7 Tax Matters...........................................................................17
6.8 Compliance With Laws..................................................................17
6.9 Assets................................................................................18
6.10 Legal Proceedings.....................................................................18
6.11 Reports...............................................................................18
6.12 Statements True and Correct...........................................................19
6.13 Accounting, Tax and Regulatory Matters................................................19
6.14 Environmental Matters.................................................................19
6.15 Derivatives Contracts.................................................................20
6.16 Outstanding Premier Common Stock......................................................20
6.17 Material Contracts....................................................................20
6.18 Employee Benefit Plans................................................................20
6.19 Year 2000.............................................................................22
ARTICLE 7
CONDUCT OF BUSINESS PENDING CONSUMMATION
7.1 Affirmative Covenants of Premier......................................................23
7.2 Negative Covenants of Premier.........................................................23
7.3 Covenants of Riva Bancshares..........................................................25
7.4 Adverse Changes In Condition..........................................................25
7.5 Reports...............................................................................25
ARTICLE 8
ADDITIONAL AGREEMENTS
8.1 Registration Statement; Proxy Statement; Shareholder Approval.........................26
8.2 Share Purchases by and Option Grants to Premier Shareholders..........................26
8.3 Restrictions on Transfer of Shares Held by Premier Directors,
Officers and Shareholders.............................................................27
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8.4 Agreement as to Efforts to Consummate.................................................28
8.5 Applications..........................................................................28
8.6 Access to Information; Confidentiality................................................28
8.7 Current Information...................................................................29
8.8 Other Actions.........................................................................29
8.9 Press Releases........................................................................29
8.10 No Solicitation.......................................................................29
8.11 Accounting and Tax Treatment..........................................................30
8.12 Anti-Takeover Provisions..............................................................30
8.13 Agreement of Affiliates...............................................................30
8.14 Employee Benefits and Contracts.......................................................30
8.15 Management Contracts..................................................................30
8.16 Indemnification and Directors' Liability Insurance....................................31
8.17 Filings with State of Missouri........................................................31
ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE
9.1 Conditions to Obligations of Each Party...............................................32
9.2 Conditions to Obligations of Riva Bancshares..........................................33
9.3 Conditions to Obligations of Premier..................................................34
ARTICLE 10
TERMINATION
10.1 Termination...........................................................................35
10.2 Effect of Termination.................................................................36
10.3 Non-Survival of Representations and Covenants.........................................38
ARTICLE 11
MISCELLANEOUS
11.1 Definitions...........................................................................38
11.2 Expenses..............................................................................44
11.3 Brokers and Finders...................................................................44
11.4 Entire Agreement......................................................................45
11.5 Amendments............................................................................45
11.6 Obligations of Riva Bancshares........................................................45
11.7 Waivers...............................................................................45
11.8 Assignment............................................................................45
11.9 Notices...............................................................................46
11.10 Governing Law.........................................................................46
11.11 Counterparts..........................................................................46
11.12 Captions..............................................................................47
11.13 Severability..........................................................................47
11.14 Enforcement of Agreement..............................................................47
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LIST OF EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
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1. Form of agreement of affiliates of Premier Bancshares, Inc.
(Section 8.13)
2. Form of opinion of Suelthaus & Xxxxx, P.C. (Section 9.2(e))
3. Form of opinion of Xxxxx, Xxxxxxxx & Xxxxxxx, LLP (Section
9.3(f))
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AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
THIS AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER (this
"Agreement") is made and entered into as of July 29, 1999, by and between RIVA
BANCSHARES, INC. ("Riva Bancshares"), a Delaware corporation having its
principal office located in St. Louis, Missouri, and PREMIER BANCSHARES, INC., a
Missouri corporation having its principal office located in Jefferson City,
Missouri ("Premier").
PREAMBLE
The Boards of Directors of Riva Bancshares and Premier are of the
opinion that the acquisition described herein is in the best interests of the
Parties and their respective shareholders. This Agreement provides for the
acquisition of Premier by Riva Bancshares pursuant to the merger of Premier with
and into Riva Bancshares (the "Merger"). At the effective time of such Merger,
the outstanding shares of the capital stock of Premier shall be converted into
the right to receive shares of the common stock of Riva Bancshares (except as
provided herein). As a result, shareholders of Premier shall become shareholders
of Riva Bancshares. The transactions described in this Agreement are subject to
the approvals of the shareholders of Riva Bancshares and Premier, the Board of
Governors of the Federal Reserve System, the Division of Finance of the Missouri
Department of Economic Development, and the satisfaction of certain other
conditions described in this Agreement. It is the intention of the Parties that
the Merger for federal income tax purposes shall qualify as a "reorganization"
within the meaning of Section 368(a) of the Internal Revenue Code, and will be a
tax free exchange for the shareholders of Premier except for cash received in
connection with fractional shares and the exercise of dissenters' rights. Unless
expressly stated otherwise herein, this Agreement shall be deemed to supersede
all prior warranties, representations, covenants and agreements between the
parties hereto.
Certain terms used in this Agreement are defined in Section 11.1 of
this Agreement.
WHEREAS, Riva Bancshares and Premier entered into that certain
Agreement and Plan of Merger dated as of May 6, 1999; and
WHEREAS, Riva Bancshares and Premier entered into that certain
Amendment No. 1 to the Agreement and Plan of Merger, dated as of July 22, 1999;
and
WHEREAS, the Boards of Directors of the parties have determined that is
in their respective best interests and the respective best interests of their
shareholders that the Agreement and Plan of Merger be further amended and
restated into one document;
NOW, THEREFORE, in consideration of the above and the mutual
warranties, representations, covenants, and agreements set forth herein, the
Parties agree as follows:
ARTICLE 1
TRANSACTIONS AND TERMS OF MERGER
1.1 Merger. Subject to the terms and conditions of this Agreement,
at the Effective Time, Premier shall be merged with and into Riva Bancshares in
accordance with the provisions of the General and
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Business Corporation Law of Missouri (the "GBCL") and the Delaware General
Corporation Laws ("DGCL"). The separate existence of Premier shall thereupon
cease, and Riva Bancshares shall be the Surviving Corporation resulting from the
Merger and shall continue to be governed by the DGCL. The Merger shall have the
effects specified in ss. 351.450 RSMo of the GBCL and ss. 251 of the DGCL. The
Merger shall be consummated pursuant to the terms of this Agreement, which has
been approved and adopted by the respective Boards of Directors of Riva
Bancshares and Premier.
1.2 Time and Place of Closing. The closing of the transactions
contemplated by this Agreement (the "Closing") will be immediately prior to the
closing of Riva Bancshares' public offering referred to Section 9.1(g) herein.
The Closing will take place at a time, place and date specified by the Parties
as they, acting through their chief executive officers or chief financial
officers, may mutually agree.
1.3 Effective Time. The Merger and other transactions contemplated
by this Agreement shall become effective as set forth in the certificate of
merger (the "Certificate of Merger") which shall be filed with the office of the
Secretary of State of Delaware. The term "Effective Time" shall mean the date
and time when the Merger becomes effective, as set forth in the Certificate of
Merger. Subject to the terms and conditions hereof, unless otherwise mutually
agreed upon in writing by each Party, the Parties shall use their reasonable
best efforts to cause the Effective Time to occur on the date of Closing.
ARTICLE 2
TERMS OF MERGER
2.1 Certificate of Incorporation. Pursuant to the Merger, the
Certificate of Incorporation of Riva Bancshares in effect immediately prior to
the Effective Time shall be the Certificate of Incorporation of the Surviving
Corporation until otherwise amended or repealed in accordance with applicable
Law.
2.2 Bylaws. Pursuant to the Merger, the Bylaws of Riva Bancshares
in effect immediately prior to the Effective Time shall be the bylaws of the
Surviving Corporation until otherwise amended or repealed, in accordance with
applicable Law.
2.3 Directors. The Board of Directors of Premier hereby approves
and ratifies the selection and appointment of the following individuals to serve
as members of the Board of Directors of Riva Bancshares:
(a) Xxxx X. Xxxxxxxxx;
(b) Xxxxx X. Xxxxx;
(c) Xxxxx X. Xxxx;
(d) Xxxxxx X. Xxxxx; and
(e) Xxxxxxxx X. Xxxxxxxx.
2.4 Premier Directors. At the Effective Time, the number of members
of the Board of Directors of Riva Bancshares shall be increased to ten and the
following members of the Board of Directors of Premier (the "Premier Directors")
shall be nominated by the Riva Bancshares Board of Directors and elected to such
Board:
(a) Xxxxxx X. Xxxxxx;
(b) Xxxxx X. Xxxxx; and
(c) Xxxxxxx X. Xxxxxxxxxx.
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Each of the Premier Directors shall be elected as Class III directors of Riva
Bancshares and shall serve for a term of three years and until their successors
have been elected and qualified; provided, however, that the current members of
the Board of Directors of Premier (the "Current Premier Directors") shall have
the right to nominate the successors to the Premier Directors at the two
elections of Class III directors subsequent to the next election of the Class
III directors and Riva Bancshares agrees to solicit proxies on behalf of such
nominees; provided, further, that in the event that during the first three terms
of the Class III directors, a vacancy is created as a result of the resignation,
removal or death of one of the Premier Directors or their successors, the
Current Premier Directors shall nominate such director's replacement.
ARTICLE 3
MANNER OF CONVERTING SHARES
3.1 Conversion of Shares. Subject to the provisions of this
Article 3, at the Effective Time, by virtue of the Merger and without any action
on the part of Riva Bancshares or Premier, or the shareholders of any of the
foregoing, the shares of the constituent corporations shall be converted as
follows:
(a) Each share of Riva Bancshares Capital Stock issued and
outstanding immediately prior to the Effective Time shall remain issued
and outstanding from and after the Effective Time.
(b) Except for Premier Common Stock issued and outstanding
immediately prior to the Effective Time as to which dissenters' rights
have been perfected and not withdrawn, and subject to Section 3.4
relating to fractional shares, each share of Premier Common Stock
issued and outstanding at the Effective Time shall cease to be
outstanding and shall be converted into and exchanged for the number of
shares of Riva Bancshares Common Stock equal to the quotient obtained
by dividing $215.136 by the initial public offering price of one share
of Riva Bancshares Common Stock as determined by Riva Bancshares'
underwriters in the public offering referred to in Section 9.1(g) of
this Agreement, rounded to the nearest third decimal point (the
"Exchange Ratio"). Notwithstanding the foregoing, in no event shall
more than 42,000 shares of Common Stock of Premier be converted to Riva
Bancshares Common Stock.
(c) Notwithstanding Section 3.1(b) of this Agreement, Premier
Common Stock issued and outstanding at the Effective Time which is held
by a holder who has not voted in favor of the Merger and who has
demanded payment of the fair value of such shares ("Dissenting Premier
Shares") in accordance with ss. 351.455 RSMo of the GBCL (the "Dissent
Provisions") shall not be converted into or represent the right to
receive the Riva Bancshares Common Stock payable thereon pursuant to
Section 3.1(b) of this Agreement, and shall be entitled only to such
rights of appraisal as are granted by the Dissent Provisions, unless
and until such holder fails to perfect or effectively withdraws or
otherwise loses the right to appraisal. If, after the Effective Time,
any such holder fails to perfect or effectively withdraws or loses the
right to appraisal, such shares of Premier Common Stock shall be
treated as if they had been converted at the Effective Time into the
right to receive the Riva Bancshares Common Stock payable thereon
pursuant to Section 3.1(b) of this Agreement. Premier shall give Riva
Bancshares prompt notice upon receipt by Premier of any written
objection to the Merger and such written demands for payment of the
fair value of shares of Premier Common Stock, and the withdrawals of
such demands, and any other instruments provided to Premier pursuant to
the Dissent Provisions (any shareholder duly making such demand being
hereinafter called a "Dissenting Shareholder"). Each Dissenting
Shareholder that becomes entitled, pursuant to the Dissent Provisions,
to payment for any shares of Premier Common Stock held by such
Dissenting Shareholder shall receive such payment from Riva Bancshares
(but only after the amount
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thereof shall have been agreed upon or at the times and in the amounts
required by the Dissent Provisions) and all of such Dissenting
Shareholders' shares of Premier Common Stock shall be canceled. Premier
shall not, except with the prior written consent of Riva Bancshares,
voluntarily make any payment with respect to, or settle or offer to
settle, any demand for payment by any Dissenting Shareholder.
(d) All shares of Riva Bancshares issued pursuant to Section
3.1 shall be subject to the restrictions set forth in Section 8.3 and
shall bear an appropriate restrictive legend on the face of the
certificate representing such shares. Riva Bancshares shall instruct
its transfer agent and registrar to issue separate certificates to each
Premier shareholder for each period of restriction on trading with
respect to shares, each certificate to be for the number of shares that
are restricted for each individual period; fractional shares shall not
be represented by such individual certificates, and numbers of shares
shall be rounded down to the next lower whole number, with the final
certificate (representing shares restricted for 120 days after closing)
including any fractional shares omitted from the other certificates due
to this rounding. At such time or times as the restrictions no longer
apply with respect to one or more such certificates, Riva Bancshares
shall promptly assist any former shareholder of Premier in causing such
restrictive legend to be removed, including, but not limited to giving
written authorization to Riva Bancshares' transfer agent and registrar
to permit such shares to be sold.
3.2 Anti-Dilution Provisions. In the event Riva Bancshares changes
the number of shares of Riva Bancshares Common Stock issued and outstanding
prior to the Effective Time as a result of a stock split, stock dividend,
recapitalization, reclassification, or similar transaction with respect to such
stock and the record date therefor (in the case of a stock dividend) or the
effective date thereof (in the case of a stock split or similar recapitalization
for which a record date is not established) shall be prior to the Effective
Time, the Exchange Ratio shall be proportionately adjusted.
3.3 Shares Held by Premier. Each share of Premier Capital Stock, if
any, held by any Premier Company, other than in a fiduciary capacity or as a
result of debts previously contracted, shall be canceled and retired at the
Effective Time and no consideration shall be issued in exchange therefor.
3.4 Fractional Shares. Notwithstanding any other provision of this
Agreement, each holder of shares of Premier Common Stock exchanged pursuant to
the Merger who would otherwise have been entitled to receive a fraction of a
share of Riva Bancshares Common Stock (after taking into account all
certificates delivered by such holder) shall receive, in lieu thereof, cash
(without interest) in an amount equal to such fractional part of a share of Riva
Bancshares Common Stock multiplied by the initial public offering price of one
share of Riva Bancshares Common Stock as determined by Riva Bancshares'
underwriters in the public offering referred to in Section 9.1(g) of this
Agreement.
3.5 Options. There are no outstanding options to purchase Premier
Common Stock ("Premier Options").
ARTICLE 4
EXCHANGE OF SHARES
4.1 Exchange Procedures. At the Effective Time, Riva Bancshares
shall deposit or shall cause to be deposited with UMB Bank, N.A., Kansas City,
Missouri (the "Exchange Agent") certificates
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evidencing shares of Riva Bancshares Common Stock in such amount necessary to
provide all consideration required to be exchanged by Riva Bancshares for
Premier Common Stock pursuant to the terms of this Agreement. Promptly after the
Effective Time, Riva Bancshares shall cause the Exchange Agent to mail to the
former shareholders of Premier appropriate transmittal materials (which shall
specify that delivery shall be effected, and risk of loss and title to the
certificates theretofore representing shares of Premier Common Stock shall pass,
only upon proper delivery of such certificates to the Exchange Agent). After the
Effective Time, each holder of shares of Premier Common Stock issued and
outstanding at the Effective Time shall surrender the certificate or
certificates representing such shares to the Exchange Agent and shall upon
surrender thereof promptly receive in exchange therefor the consideration
provided in Section 3.1 of this Agreement, together with all undelivered
dividends or distributions in respect of such shares (without interest thereon)
pursuant to Section 4.2 of this Agreement. To the extent required by Section 3.4
of this Agreement, each holder of shares of Premier Common Stock issued and
outstanding at the Effective Time also shall receive, upon surrender of the
certificate or certificates representing such shares, cash in lieu of any
fractional share of Riva Bancshares Common Stock to which such holder may be
otherwise entitled (without interest). Riva Bancshares shall not be obligated to
deliver the consideration to which any former holder of Premier Common Stock is
entitled as a result of the Merger until such holder surrenders such holder's
certificate or certificates representing the shares of Premier Common Stock for
exchange as provided in this Section 4.1. The certificate or certificates of
Premier Common Stock so surrendered shall be duly endorsed as the Exchange Agent
may require. Any other provision of this Agreement notwithstanding, neither Riva
Bancshares nor the Exchange Agent shall be liable to a holder of Premier Common
Stock for any amounts paid or property delivered in good faith to a public
official pursuant to any applicable abandoned property Law. In the event that
any shareholder of Premier is unable to surrender a certificate because it is
lost or destroyed, the Exchange Agent may make distribution to that shareholder
upon receipt of such affidavits, undertakings, indemnity bonds, and other
agreements as are customary in such circumstances.
4.2 Rights of Former Premier Shareholders. At the Effective Time,
the stock transfer books of Premier shall be closed as to holders of Premier
Common Stock immediately prior to the Effective Time and no transfer of Premier
Common Stock by any such holder shall thereafter be made or recognized. Until
surrendered for exchange in accordance with the provisions of Section 4.1 of
this Agreement, each certificate theretofore representing shares of Premier
Common Stock shall from and after the Effective Time represent for all purposes
only the right to receive the consideration provided in Sections 3.1 and 3.4 of
this Agreement in exchange therefor, subject, however, to Riva Bancshares'
obligation to pay any dividends or make any other distributions with a record
date prior to the Effective Time which have been declared or made by Premier in
respect of such shares of Premier Common Stock in accordance with the terms of
this Agreement and which remain unpaid at the Effective Time. Whenever a
dividend or other distribution is declared by Riva Bancshares on the Riva
Bancshares Common Stock, the record date for which is at or after the Effective
Time, the declaration shall include dividends or other distributions on all
shares issuable pursuant to this Agreement, but beginning 30 days after the
Effective Time no dividend or other distribution payable to the holders of
record of Riva Bancshares Common Stock as of any time subsequent to the
Effective Time shall be delivered to the holder of any certificate representing
shares of Premier Common Stock issued and outstanding at the Effective Time
until such holder surrenders such certificate for exchange as provided in
Section 4.1 of this Agreement. However, upon surrender of such Premier Common
Stock certificate, or in the case of lost or destroyed certificates delivery of
the requisite affidavits, undertakings, indemnity bonds and other agreements
customary in such circumstances, both the Riva Bancshares Common Stock
certificate (together with all such undelivered dividends or other distributions
without interest) and any undelivered dividends and cash payments to be paid for
fractional share interests (without interest) shall be delivered and paid with
respect to each share represented by such certificate. Any portion of the
consideration (including the proceeds of any investments thereof) which had been
made payable to the Exchange Agent pursuant to Section 4.1 of this Agreement
that remain unclaimed by the shareholders of Premier for six (6) months after
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the Effective Time shall be paid to Riva Bancshares. Any shareholders of Premier
who have not theretofore complied with this Article 4 shall thereafter look only
to Riva Bancshares for payment of their shares of Riva Bancshares Common Stock
and cash in lieu of fractional shares and unpaid dividends and distributions on
the Riva Bancshares Common Stock deliverable in respect of each Premier share of
Common Stock such shareholder holds as determined pursuant to this Agreement, in
each case, without any interest thereon.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PREMIER
Premier hereby represents and warrants to Riva Bancshares as follows:
5.1 Organization, Standing, and Power. Premier is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Missouri, and has the corporate power and authority to carry on its
business as now conducted and to own, lease and operate its material Assets.
Premier is duly qualified or licensed to transact business as a foreign
corporation and is in good standing in each jurisdiction where the character of
the Assets or the nature or conduct of its business requires it to be so
qualified or licensed, except for such jurisdictions in which the failure to be
so qualified or licensed is not reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on Premier and its Subsidiaries taken
as a whole.
5.2 Authority; No Breach by Agreement.
(a) Premier has the corporate power and authority necessary to
execute and deliver this Agreement and, subject to the approval and
adoption of this Agreement by the shareholders of Premier and the
receipt of the consents sent forth in Section 9.1(b), to perform its
obligations under this Agreement and consummate the transactions
contemplated hereby. The execution, delivery, and performance of this
Agreement by Premier and the consummation by Premier of the
transactions contemplated herein, including the Merger, have been duly
and validly authorized by all necessary corporate action in respect
thereof on the part of Premier, subject to the approval of this
Agreement by its shareholders as contemplated by Section 8.1 of this
Agreement. Subject to such requisite shareholder approval (and assuming
due authorization, execution and delivery by Riva Bancshares and
Premier) and to such Consents of Regulatory Authorities as required by
applicable Law, this Agreement represents a legal, valid, and binding
obligation of Premier, enforceable against Premier in accordance with
its terms (except in all cases as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar Laws affecting the enforcement of creditors' rights generally
and except that the availability of the equitable remedy of specific
performance or injunctive relief is subject to the discretion of the
court before which any proceeding may be brought). The Premier Board of
Directors will have received from GRA Xxxxxxxx White & Company, PC, a
letter dated on or about the date of the Proxy Statement to the effect
that, in the opinion of such firm, the Exchange Ratio is fair, from a
financial point of view, to the holders of Premier Common Stock.
(b) Neither the execution and delivery of this Agreement by
Premier, nor the consummation by Premier of the transactions
contemplated hereby, nor compliance by Premier with any of the
provisions hereof, will (i) conflict with or result in a breach of any
provision of Premier's Articles of Incorporation or Bylaws, or, (ii)
except as disclosed in Section 5.2(b) of the Disclosure Schedule,
constitute or result in a Default under, or require any Consent
pursuant to, or result in the creation of any Lien on any Asset of any
Premier Company under, any Contract or Permit of any
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Premier Company, where such Default or Lien, or any failure to obtain
such Consent, is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Premier and its Subsidiaries
taken as a whole, or, (iii) subject to receipt of the requisite
Consents referred to in Section 9.1(b) of this Agreement, violate any
Law or Order applicable to any Premier Company or any of their
respective material Assets.
(c) Other than in connection or compliance with the provisions
of the Securities Laws, applicable state corporate and securities Laws,
and other than notices to or Consents required from Regulatory
Authorities, and other than notices to or filings with the Internal
Revenue Service or the Pension Benefit Guaranty Corporation with
respect to any employee benefit plans, and other than Consents,
filings, or notifications which, if not obtained or made, are not
reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on Premier, no notice to, filing with, or Consent of,
any public body or authority is necessary for the consummation by
Premier of the Merger and the other transactions contemplated in this
Agreement.
5.3 Capital Stock.
(a) The authorized capital stock of Premier consists of 100,000
shares of Premier Common Stock, of which 41,834 shares are issued and
outstanding as of the date of this Agreement and not more than 42,000
shares will be issued and outstanding at the Effective Time. All of the
issued and outstanding shares of capital stock of Premier are duly and
validly issued and outstanding and are fully paid and nonassessable
under the GBCL. None of the outstanding shares of capital stock of
Premier has been issued in violation of any preemptive rights. Premier
has no options or warrants to purchase shares of Premier Common Stock.
(b) Except as set forth in Section 5.3(a) of this Agreement,
there are no shares of Premier Capital Stock or other equity securities
of Premier outstanding and no outstanding Rights relating to Premier
Capital Stock.
5.4 Premier Subsidiaries. Premier has disclosed in Section 5.4 of
the Disclosure Schedule all of the Premier Subsidiaries as of the date of this
Agreement. Except as disclosed in Section 5.4 of the Disclosure Schedule,
Premier or one of its Subsidiaries owns all of the issued and outstanding shares
of capital stock of each Premier Subsidiary. No equity securities of any Premier
Subsidiary are or may become required to be issued (other than to another
Premier Company) by reason of any Rights, and there are no Contracts by which
any Premier Subsidiary is bound to issue (other than to another Premier Company)
additional shares of its capital stock or Rights or by which any Premier Company
is or may be bound to transfer any shares of the capital stock of any Premier
Subsidiary (other than to another Premier Company). There are no Contracts
relating to the rights of any Premier Company to vote or to dispose of any
shares of the capital stock of any Premier Subsidiary. All of the shares of
capital stock of each Premier Subsidiary held by a Premier Company are fully
paid and nonassessable under the applicable corporation or banking Law of the
jurisdiction in which such Subsidiary is incorporated or organized and, except
as set forth in Section 5.4 of the Disclosure Schedule, are owned by the Premier
Company free and clear of any Lien. Each Premier Subsidiary is either a bank or
a corporation, and is duly organized, validly existing, and (as to corporations)
in good standing under the Laws of the jurisdiction in which it is incorporated
or organized, and has the corporate power and authority necessary for it to own,
lease, and operate its Assets and to carry on its business as now conducted.
Each Premier Subsidiary is duly qualified or licensed to transact business as a
foreign corporation in good standing in each jurisdiction where the character of
its Assets or the nature or conduct of its business requires it to be so
qualified or licensed, except for such jurisdictions in which the failure to be
so qualified or licensed is not reasonably likely to have, individually or in
the aggregate, a
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Material Adverse Effect on Premier and its Subsidiaries taken as a whole. Each
Premier Subsidiary that is a depository institution is an "insured institution"
as defined in the Federal Deposit Insurance Act and applicable regulations
thereunder, and the deposits of which are insured by the Bank Insurance Fund.
5.5 Regulatory Filings; Financial Statements. Premier has filed and
made available to Riva Bancshares copies of the Premier Financial Statements and
all reports of any outside auditors, consultants or advisors to Premier. Each of
the Premier Financial Statements (including, in each case, any related notes),
including any Premier Financial Statements filed after the date of this
Agreement until the Effective Time, was prepared in accordance with GAAP applied
on a consistent basis throughout the periods involved (except as may be
indicated in the notes to such financial statements), and fairly present the
consolidated financial position of Premier and its Subsidiaries at the
respective dates and the consolidated results of its operations and cash flows
for the periods indicated, except that the unaudited interim financial
statements were or are subject to normal and recurring year-end adjustments
which were not or are not expected to be material in amount and except for the
absence of certain footnote information in the unaudited interim financial
statements.
5.6 Notes and Obligations.
(a) Except as set forth in Section 5.6 of the Disclosure
Schedule, or as provided in the loss reserve described in subparagraph
(b) below, without conducting any independent investigation, to the
Knowledge of Premier no notes receivable or any other obligations owned
by Premier or any Premier Company or due to any of them, shown on the
Premier Financial Statements or any such notes receivable and
obligations on the date hereof and as of the Effective Time have not
been and will not be genuine, legal, valid and collectible obligations
of the respective makers thereof and are not and will not be subject to
any offset or counterclaim. Except as set forth in subparagraph (b)
below, all such notes and obligations are evidenced by written
agreements, true and correct copies of which will be made available to
Riva Bancshares for examination prior to the Effective Time. All such
notes and obligations were entered into by either Premier or a Premier
Company in the ordinary course of its business and in compliance with
all applicable laws and regulations, except as to any non-compliance
which has not and will not have a Material Adverse Effect on Premier.
(b) Premier has established a loss reserve on the Premier
Financial Statements which is adequate to cover anticipated losses
which might result from such items as the insolvency or default of
borrowers or obligors on such loans or obligations, defects in the
notes or evidences of obligation (including losses of original notes or
instruments), offsets or counterclaims properly chargeable to such
reserve, or the availability of legal or equitable defenses which might
preclude or limit the ability of Premier to enforce the note or
obligation, and the representations set forth in subparagraph (a) above
are qualified in their entirety by the aggregate of such loss reserves.
5.7 Absence of Certain Changes or Events. Since December 31, 1998,
except as disclosed in Section 5.7 of the Disclosure Schedule, (i) there have
been no events, changes, or occurrences which have had, or are reasonably likely
to have, individually or in the aggregate, a Material Adverse Effect on Premier,
and (ii) Premier has not taken any action, or failed to take any action, prior
to the date of this Agreement, which action or failure, if taken after the date
of this Agreement, would represent or result in a material breach or violation
of any of the covenants and agreements of Premier provided in Article 7 of this
Agreement.
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5.8 Tax Matters.
(a) All Tax Returns required to be filed by or on behalf of any
Premier Company have been timely filed for periods ended on or before
December 31, 1997, and all Tax Returns filed are complete and accurate
in all material respects to the Knowledge of Premier. All Taxes shown
on filed Tax Returns have been paid. There is no audit examination,
deficiency, or refund Litigation with respect to any Taxes that is
reasonably likely to result in a determination that would have,
individually or in the aggregate, a Material Adverse Effect on Premier
and its Subsidiaries taken as a whole, except as reserved against in
the Premier Financial Statements delivered prior to the date of this
Agreement or as disclosed in Section 5.8(a) of the Disclosure Schedule.
All Taxes and other Liabilities due with respect to completed and
settled examinations or concluded Litigation have been paid.
(b) No Premier Company has executed an extension or waiver of
any statute of limitations on the assessment or collection of any Tax
due that is currently in effect.
(c) Adequate provision for any Taxes due or to become due for
any Premier Company for the period or periods through and including the
date of the Premier Financial Statements has been made and is reflected
on the Premier Financial Statements.
(d) Deferred Taxes of each Premier Company have been adequately
provided for in the Premier Financial Statements.
(e) Each Premier Company is in compliance with, and its records
contain all information and documents (including properly completed
Internal Revenue Service Forms W-9) necessary to comply with, all
applicable information reporting and Tax withholding requirements under
federal, state, and local Tax Laws, and such records identify with
specificity all accounts subject to backup withholding under Section
3406 of the Internal Revenue Code, except for such instances of
noncompliance and such omissions as are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Premier
and its Subsidiaries taken as a whole.
(f) Except as disclosed in Section 5.8(f) of the Disclosure
Schedule, no Premier Company has made any payments, is obligated to
make any payments, or is a party to any contract, agreement, or other
arrangement that could obligate any Premier Company to make any
payments that would be disallowed as a deduction under Section 280G or
162(m) of the Internal Revenue Code.
(g) There are no Liens with respect to Taxes upon any of the
Assets of any Premier Company.
(h) No Premier Company has filed any consent under Section
341(f) of the Internal Revenue Code concerning collapsible
corporations.
(i) All material elections with respect to Taxes affecting any
Premier Company as of the date of this Agreement have been or will be
timely made as set forth in Section 5.8 of the Disclosure Schedule.
After the date hereof, other than as set forth in Section 5.8(a) of the
Disclosure Schedule, no election with respect to Taxes will be made
without the prior written consent of Riva Bancshares, which consent
will not be unreasonably withheld.
5.9 Assets. Except as disclosed in Section 5.9 of the Disclosure
Schedule, each Premier Company has good and marketable title, free and clear of
all Liens, to all of its respective Assets. All tangible
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properties used in the businesses of each Premier Company are in good condition,
reasonable wear and tear excepted, and are usable in the ordinary course of
business consistent with Premier's past practices. All Assets which are material
to Premier's business held under leases or subleases by any Premier Company, are
held under valid Contracts which to the Knowledge of Premier are enforceable in
accordance with their respective terms (except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium, or other Laws
affecting the enforcement of creditors' rights generally and except that the
availability of the equitable remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any proceedings
may be brought), and each such Contract is in full force and effect. Each
Premier Company currently maintains insurance in amounts, scope, and coverage as
disclosed in Section 5.9 of the Disclosure Schedule. No Premier Company has
received written notice from any insurance carrier that (i) such insurance will
be canceled or that coverage thereunder will be reduced or eliminated, or (ii)
premium costs with respect to such policies of insurance will be substantially
increased. Except as disclosed in Section 5.9 of the Disclosure Schedule, there
are presently no claims pending under such policies of insurance and no notices
have been given by any Premier Company under such policies. The Assets of
Premier include all required assets, leases and Permits necessary to operate its
business as presently conducted.
5.10 Environmental Matters.
(a) To the Knowledge of Premier, each Premier Company, its
Participation Facilities, and its Loan Properties are, and have been,
in compliance with all Environmental Laws, except for violations which
are not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Premier and its Subsidiaries taken as a
whole.
(b) To the Knowledge of Premier, there is no Litigation pending
or threatened before any court, governmental agency, or authority or
other forum in which any Premier Company or any of its Loan Properties
or Participation Facilities has been or, with respect to threatened
Litigation, may be named as a defendant or potentially responsible
party (i) for alleged noncompliance (including by any predecessor) with
any Environmental Law or (ii) relating to the release into the
environment of any Hazardous Material, whether or not occurring at, on,
under, or involving any of its Loan Properties or Participation
Facilities, except for such Litigation pending or threatened that is
not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Premier and its Subsidiaries taken as a
whole.
(c) To the Knowledge of Premier, there is no reasonable basis
for any Litigation of a type described above in subsection (b), except
such as is not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Premier.
(d) To the Knowledge of Premier, except as disclosed in Section
5.10(d) of the Disclosure Schedule, during the period of (i) Premier's
ownership or operation of any of their respective properties, (ii)
Premier's participation in the management of any Participation
Facility, or (iii) Premier's holding a security interest in a Loan
Property, there have been no releases of Hazardous Material in, on,
under, or affecting any Participation Facility or Loan Property of any
Premier Company, except such as are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Premier
and its Subsidiaries taken as a whole.
5.11 Compliance With Laws. Premier is duly registered as a bank
holding company under the BHC Act. Except as set forth in Section 5.11 of the
Disclosure Schedule, each Premier Company has in effect all Permits necessary
for it to own, lease, or operate its material Assets and to carry on its
business as now
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conducted, except for those Permits the absence of which are not reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
Premier and its Subsidiaries taken as a whole. No Premier Company is presently
in default under any such Permit, other than defaults which are not reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
Premier and its Subsidiaries taken as a whole. Except as disclosed in Section
5.11 of the Disclosure Schedule, no Premier Company:
(a) to the Knowledge of Premier, is in violation of any Laws or
Orders, applicable to its business or employees conducting its
business, except for violations which are not reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on
Premier and its Subsidiaries taken as a whole; and
(b) has received any written notification or communication from
any agency or department of federal, state, or local government or any
Regulatory Authority or the staff thereof (i) asserting that any
Premier Company is not in substantial compliance with any of the Laws
or Orders which such governmental authority or Regulatory Authority
enforces, where such noncompliance is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Premier
and its Subsidiaries taken as a whole, (ii) threatening to revoke any
Permits, the revocation of which is reasonably likely to have, a
Material Adverse Effect on Premier and its Subsidiaries taken as a
whole, or (iii) requiring any Premier Company to enter into or consent
to the issuance of a cease and desist order, formal agreement,
directive, commitment, or memorandum of understanding, or to adopt any
Board resolution or similar undertaking, which restricts materially the
conduct of its business, or in any manner relates to its capital
adequacy, its credit or reserve policies, its management, or the
payment of dividends.
5.12 Labor Relations. No Premier Company is the subject of any
Litigation asserting that it has committed an unfair labor practice (within the
meaning of the National Labor Relations Act or comparable state law) or seeking
to compel it or any other Premier Company to bargain with any labor organization
as to wages or conditions of employment, nor is there any strike or other labor
dispute involving any Premier Company, pending or, to the Knowledge of Premier,
threatened, nor is there any activity involving any employees of any Premier
Company seeking to certify a collective bargaining unit or engaging in any other
organization activity.
5.13 Employee Benefit Plans.
(a) Premier has disclosed in Section 5.13(a) of the Disclosure
Schedule and has delivered or made available to Riva Bancshares prior
to the execution of this Agreement, copies in each case of, all
pension, retirement, profit-sharing, deferred compensation, stock
option, employee stock ownership, severance pay, vacation, bonus, or
other incentive plans, all other written employee programs,
arrangements, or agreements, all medical, vision, dental, or other
health plans, all life insurance plans, and all other employee benefit
plans or fringe benefit plans, including "employee benefit plans" (as
that term is defined in Section 3(3) of ERISA), currently adopted,
maintained by, sponsored in whole or in part by, or contributed to by
Premier for the benefit of employees, retirees, dependents, spouses,
directors, independent contractors, or other beneficiaries and under
which employees, retirees, dependents, spouses, directors, independent
contractors, or other beneficiaries are eligible to participate
(collectively, the "Premier Benefit Plans"). Any of the Premier Benefit
Plans which is an "employee pension benefit plan" (as that term is
defined in Section 3(2) of ERISA), is referred to herein as a "Premier
ERISA Plan." No Premier Benefit Plan is or has been a multiemployer
plan within the meaning of Section 3(37) of ERISA.
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(b) Except as disclosed in Section 5.13(b) of the Disclosure
Schedule, all Premier Benefit Plans are in compliance with the
applicable terms of ERISA, the Internal Revenue Code, and any other
applicable Laws the breach or violation of which are reasonably likely
to have, individually or in the aggregate, a Material Adverse Effect on
Premier, and each Premier ERISA Plan which is intended to be qualified
under Section 401(a) of the Internal Revenue Code has received a
favorable determination letter from the Internal Revenue Service, and
Premier is not aware of any circumstances likely to result in
revocation of any such favorable determination letter. To the Knowledge
of Premier, it has not engaged in a transaction with respect to any
Premier Benefit Plan that, assuming the taxable period of such
transaction expired as of the date hereof, would subject it to a Tax
imposed by either Section 4975 of the Internal Revenue Code or Section
502(i) of ERISA in amounts which are reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Premier.
(c) Except as disclosed in Section 5.13(c) of the Disclosure
Schedule, no Premier ERISA Plan has any "unfunded current liability"
(as that term is defined in Section 302(d)(8)(A) of ERISA) and the fair
market value of the assets of any such plan exceeds the plan's "benefit
liabilities," as that term is defined in Section 4001(a)(16) of ERISA,
when determined under actuarial factors that would apply if the plan
terminated in accordance with all applicable legal requirements. Except
as disclosed in Section 5.13(c) of the Disclosure Schedule, since the
date of the most recent actuarial valuation, there has been (i) no
material change in the financial position of any Premier ERISA Plan,
(ii) no change in the actuarial assumptions with respect to any Premier
ERISA Plan, and (iii) no increase in benefits under any Premier ERISA
Plan as a result of plan amendments or changes in applicable Law which
is reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Premier or materially adversely affect the
funding status of any such plan. Neither any Premier ERISA Plan nor any
"single-employer plan," within the meaning of Section 4001(a)(15) of
ERISA, currently or formerly maintained by Premier, or the
single-employer plan of any entity which is considered one employer
with Premier under Section 4001 of ERISA or Section 414 of the Internal
Revenue Code or Section 302 of ERISA (whether or not waived) (an "ERISA
Affiliate") has an "accumulated funding deficiency" within the meaning
of Section 412 of the Internal Revenue Code or Section 302 of ERISA,
which is reasonably likely to have a Material Adverse Effect on
Premier. Premier has not provided, and is not required to provide,
security to an Premier ERISA Plan or to any single-employer plan of an
ERISA Affiliate pursuant to Section 401(a)(29) of the Internal Revenue
Code.
(d) Within the six-year period preceding the Effective Time, no
Liability under Subtitle C or D of Title IV of ERISA has been or is
expected to be incurred by Premier with respect to any ongoing, frozen,
or terminated single-employer plan or the single-employer plan of any
ERISA Affiliate, which Liability is reasonably likely to have a
Material Adverse Effect on Premier. Premier has not incurred any
withdrawal Liability with respect to a multiemployer plan under
Subtitle B of Title IV of ERISA (regardless of whether based on
contributions of an ERISA Affiliate), which Liability is reasonably
likely to have a Material Adverse Effect on Premier. No notice of a
"reportable event," within the meaning of Section 4043 of ERISA for
which the 30-day reporting requirement has not been waived, has been
required to be filed for any Premier ERISA Plan or by any ERISA
Affiliate within the 12-month period ending on the date hereof.
(e) Except as disclosed in Section 5.13(e) of the Disclosure
Schedule, Premier has no Liability for retiree health and life benefits
under any of the Premier Benefit Plans and there are no restrictions on
the rights of Premier to amend or terminate any such plan without
incurring any
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Liability thereunder, which Liability is reasonably likely to have a
Material Adverse Effect on Premier.
(f) Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby will (i)
result in any payment (including severance, unemployment compensation,
golden parachute, or otherwise) becoming due to any director or any
employee of Premier or any of its Subsidiaries from Premier or any of
its Subsidiaries under any Premier Benefit Plan or otherwise, (ii)
increase any benefits otherwise payable under any Premier Benefit Plan,
or (iii) result in any acceleration of the time of payment or vesting
of any such benefit, where such payment, increase, or acceleration is
reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on Premier.
(g) The actuarial present values of all accrued deferred
compensation entitlements (including entitlements under any executive
compensation, supplemental retirement, or employment agreement) of
employees and former employees of Premier and their respective
beneficiaries, other than entitlements accrued pursuant to funded
retirement plans subject to the provisions of Section 412 of the
Internal Revenue Code or Section 302 of ERISA, have been fully
reflected on the Premier Financial Statements to the extent required by
and in accordance with GAAP.
5.14 Material Contracts. Except as disclosed in Section 5.14(a) of
the Disclosure Schedule, neither Premier nor any of its Subsidiaries is a party
to or subject to the following: (i) any employment, severance, termination,
consulting, or retirement Contract providing for aggregate payments to any
Person in any calendar year in excess of $50,000, (ii) any Contract relating to
the borrowing of money by Premier or the guarantee by Premier of any such
obligation exceeding $50,000 (other than Contracts evidencing deposit
liabilities, purchases of federal funds, fully-secured repurchase agreements,
and Federal Home Loan Bank advances of depository institution Subsidiaries,
trade payables, and Contracts relating to borrowings or guarantees made in the
ordinary course of business), and (iii) any other Contract or amendment thereto
as of the date of this Agreement not made in the ordinary course of business to
which Premier is a party or by which it is bound (together with all Contracts
referred to in Sections 5.9 and 5.13(a) of this Agreement, the "Premier
Contracts"). With respect to each Premier Contract and except as disclosed in
Section 5.14(b) of the Disclosure Schedule: (i) the Contract is in full force
and effect; (ii) neither Premier nor any of its Subsidiaries, as the case may
be, is in Default thereunder, other than Defaults which are not reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
Premier and its Subsidiaries taken as a whole; (iii) neither Premier nor any of
its Subsidiaries, as the case may be, has repudiated or waived any material
provision of any such Contract; and (iv) no other party to any such Contract is,
to the Knowledge of Premier, in Default in any respect, other than Defaults
which are not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Premier, or has repudiated or waived any material
provision thereunder. Except for Federal Home Loan Bank advances, all of the
indebtedness of Premier and any of its Subsidiaries for money borrowed is
prepayable at any time by Premier or any of its Subsidiaries, as the case may
be, without penalty or premium.
5.15 Legal Proceedings. Except as disclosed in Section 5.15(a) of
the Disclosure Schedule, there is no Litigation instituted or pending, or, to
the Knowledge of Premier, threatened (or unasserted but considered probable of
assertion and which if asserted would have at least a reasonable probability of
an unfavorable outcome) against Premier, or against any Asset, employee benefit
plan, interest, or right of any of them, that is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Premier, nor are
there any Orders of any Regulatory Authorities, other governmental authorities,
or arbitrators outstanding against any Premier Company, that are reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
Premier and its Subsidiaries taken as a whole. Section 5.15(b)
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of the Disclosure Schedule includes a summary report of all Litigation as of the
date of this Agreement to which any Premier Company is a party and which names a
Premier Company as a defendant or cross- defendant and where the estimated
maximum exposure to be $10,000 or more.
5.16 Reports. For the three years ended December 31, 1998, 1997 and
1996, and since January 1, 1999, or the date of organization if later, each
Premier Company has timely filed and to the extent permitted by Law has made
available for Riva Bancshares to review, all reports and statements, together
with any amendments required to be made with respect thereto, that it was
required to file with any Regulatory Authorities. As of their respective dates,
each of such reports and documents, including the financial statements,
exhibits, and schedules thereto, complied in all material respects with all
applicable Laws. As of its respective date, each such report and document did
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 made
therein, in light of the circumstances under which they were made, not
misleading.
5.17 Statements True and Correct. None of the information supplied
or to be supplied by any Premier Company or any Affiliate thereof for inclusion
in the Registration Statement to be filed by Riva Bancshares with the SEC will,
when the Registration Statement becomes effective, be false or misleading, with
respect to any material fact, or omit to state any material fact necessary to
make the statements therein not misleading. None of the information supplied by
any Premier Company for inclusion in the Proxy Statement to be mailed to
Premier's shareholders in connection with the Shareholders' Meeting, and any
other documents to be filed by a Premier Company with any Regulatory Authority
in connection with the transactions contemplated hereby, will, at the respective
time such documents are filed, and with respect to the Proxy Statement, when
first mailed to the shareholders of Premier, be false or misleading with respect
to any material fact, or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, or, in the case of the Proxy Statement or any amendment thereof
or supplement thereto, at the time of the Shareholders' Meeting, be false or
misleading with respect to any material fact, or omit to state any material fact
necessary to correct any statement in any earlier communication with respect to
the solicitation of any proxy for the Shareholders' Meeting. All documents that
Premier is responsible for filing with any Regulatory Authority in connection
with the transactions contemplated hereby will comply as to form in all material
respects with the provisions of applicable Law.
5.18 Accounting, Tax and Regulatory Matters. To the Knowledge of
Premier, neither Premier nor any Affiliate thereof has taken or agreed to take
any action or has any Knowledge of any fact or circumstance that is reasonably
likely to (i) prevent the transactions contemplated hereby, including the
Merger, from qualifying as a reorganization within the meaning of Section 368(a)
of the Internal Revenue Code, or (ii) materially impede or delay receipt of any
Consents of Regulatory Authorities referred to in Section 9.1(b) of this
Agreement or result in the imposition of a condition or restriction of the type
referred to in the last sentence of such Section.
5.19 Anti-Takeover Provisions. Each Premier Company has taken all
action so that the entering into of this Agreement and the consummation of the
Merger and the other transactions contemplated by this Agreement do not and will
not result in any super-majority voting requirement or the grant of any rights
to any Person under its Articles of Incorporation, Bylaws, or any other
governing instruments.
5.20 Derivatives Contracts. Neither Premier nor any of its
Subsidiaries is a party to nor has it agreed to enter into an exchange-traded or
over-the-counter swap, forward, future, option, cap, floor, or collar financial
contract, or any other interest rate or foreign currency protection contract not
included on
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its balance sheet which is a financial derivative contract (including various
combinations thereof) (each a "Derivatives Contract").
5.21 Year 2000. All computer software and hardware necessary for the
conduct of business by any Premier Company (the "Software") is designed to be
used before, on, and after January 1, 2000 and the Software will operate during
each such time period without error relating to the year 2000, specifically
including any error relating to, or the product of, any date data representing
or referring to any particular date. As used in the preceding sentence,
"operate" further includes, but is not limited to, accepting input of dates
without ambiguity, outputting all dates without ambiguity, and performing
calculations, comparisons, extractions, sorting and any other processing or
taking actions or making decisions using dates or time periods without suffering
any abends, aborts, invalid or incorrect results or other interruptions, whether
before, on, or after January 1, 2000. Further, every Premier Company has
received all year 2000 examinations and certifications as required by applicable
Law and will, prior to the Effective Time, make available for Riva Bancshares'
review all such examinations and certifications.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF RIVA BANCSHARES
Riva Bancshares hereby represents and warrants to Premier as follows:
6.1 Organization, Standing, and Power. Riva Bancshares is a
corporation duly organized, validly existing, and in good standing under the
Laws of the State of Delaware, and has the corporate power and authority to
carry on its business as now conducted and to own, lease, and operate its
material Assets. Riva Bancshares is in good standing in Missouri and such other
states of the United States and foreign jurisdictions where the character of its
Assets or the nature or conduct of its business requires it to be so qualified
or licensed except for such jurisdictions in which the failure to be so
qualified or licensed is not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Riva Bancshares.
6.2 Authority; No Breach By Agreement.
(a) Riva Bancshares has the corporate power and authority
necessary to execute, deliver, and perform its obligations under this
Agreement and, subject to the approval and adoption of this Agreement
by the shareholders of Riva Bancshares, to consummate the transactions
contemplated hereby. The execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated herein,
including the Merger, have been duly and validly authorized by all
necessary corporate action in respect thereof on the part of Riva
Bancshares, subject to the approval of this Agreement by its
shareholders. Subject to such requisite shareholder approval (and
assuming due authorization, execution and delivery by Riva Bancshares
and Premier) and to such Consents of Regulatory Authorities as required
by applicable Law, this Agreement represents a legal, valid, and
binding obligation of Riva Bancshares, enforceable against Riva
Bancshares, in accordance with its terms (except in all cases as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar Laws affecting the enforcement
of creditors' rights generally and except that the availability of the
equitable remedy of specific performance or injunctive relief is
subject to the discretion of the court before which any proceeding may
be brought).
(b) Neither the execution and delivery of this Agreement by
Riva Bancshares nor the consummation by Riva Bancshares of the
transactions contemplated hereby, nor compliance by Xxxx
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Xxxxxxxxxx with any of the provisions hereof, will (i) conflict with or
result in a breach of any provision of the Certificate of Incorporation
or Bylaws of Riva Bancshares or (ii) constitute or result in a Default
under, or require any Consent pursuant to, or result in the creation of
any Lien on any Asset of Riva Bancshares under any Contract or Permit
of Riva Bancshares, where such Default or Lien, or any failure to
obtain such Consent, is reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on Riva Bancshares, or, (iii)
subject to receipt of the requisite Consents referred to in Section
9.1(b) of this Agreement, violate any Law or Order applicable to Riva
Bancshares or any of its respective material Assets.
(c) Other than in connection or compliance with the provisions
of the Securities Laws, applicable state corporate and securities Laws,
and rules of NASDAQ, and other than Consents required from Regulatory
Authorities, and other than notices to or filings with the Internal
Revenue Service or the Pension Benefit Guaranty Corporation with
respect to any employee benefit plans, and other than Consents,
filings, or notifications which, if not obtained or made, are not
reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on Riva Bancshares, no notice to, filing with, or
Consent of, any public body or authority is necessary for the
consummation by Riva Bancshares of the Merger and the other
transactions contemplated in this Agreement.
6.3 Capital Stock. The authorized capital stock of Riva Bancshares
consists of 21,000,000 shares of Riva Bancshares Common Stock, of which 10,000
shares will be issued and outstanding as of the Effective Time and (ii)
1,000,000 shares of Riva Bancshares Preferred Stock, of which 99,900 shares were
issued and outstanding as of the date of this Agreement. All of the issued and
outstanding shares of Riva Bancshares Capital Stock are authorized and validly
issued, and all of the Riva Bancshares Common Stock to be issued in exchange for
Premier Common Stock upon consummation of the Merger, will be authorized and
reserved for issuance prior to the Effective Time and, when issued in accordance
with the terms of this Agreement, will be, duly and validly issued and
outstanding and fully paid and nonassessable under the DGCL. Riva Bancshares has
reserved 500,000 shares of Riva Bancshares Common Stock for issuance under the
Riva Bancshares Stock Plans, pursuant to which options to purchase not more than
329,475 shares of Riva Bancshares Common Stock will be outstanding upon
completion of the Merger. Warrants to purchase not more than 215,798 shares of
Riva Bancshares Common Stock are outstanding and, upon completion of the Merger,
warrants to purchase not more than 565,798 shares of Riva Bancshares Common
Stock will be outstanding. None of the shares of Riva Bancshares Common Stock to
be issued under Riva Bancshares Stock Plan or to be issued pursuant to warrants
to purchase shares of Riva Bancshares Common Stock are subject to preemptive
rights of any current or past shareholders of Riva Bancshares. None of the
outstanding shares of Riva Bancshares Capital Stock has been, and none of the
shares of Riva Bancshares Common Stock to be issued in exchange for shares of
Premier Common Stock upon consummation of the Merger will be, issued in
violation of any preemptive rights of the current or past shareholders of Riva
Bancshares. Riva Bancshares will issue no additional Common Stock or Preferred
Stock until the Effective Time.
6.4 Riva Bancshares Subsidiaries. Riva Bancshares has no active or
inactive Subsidiaries as of the date of this Agreement; provided, however, that
pursuant to the Merger and after the Effective Time, Riva Bancshares shall own
those Subsidiaries disclosed in Section 5.4 of the Disclosure Schedule.
6.5 Financial Statements. Riva Bancshares has delivered to Premier
prior to the execution of this Agreement copies of the Riva Bancshares Financial
Statements as of December 31, 1998. Riva Bancshares shall provide Premier with
its unaudited Financial Statements for the stub periods ending March 31, 1999
and June 30, 1999, as soon as practicable after the same become available. The
Riva Bancshares Financial Statements (as of the dates thereof): (i) are, or will
be, in accordance with the books and records of Riva Bancshares, which are
complete and accurate in all material respects and which have been maintained in
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accordance with good business practices, and (ii) present fairly the financial
position of Riva Bancshares as of December 31, 1998 in accordance with GAAP.
6.6 Absence of Certain Changes or Events. Since January 1, 1998,
except as disclosed in the Riva Bancshares Financial Statements delivered prior
to the date of this Agreement, (i) there have been no events, changes or
occurrences which have had, or are reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on Riva Bancshares, and (ii) Riva
Bancshares has not taken any action, or failed to take any action, prior to the
date of this Agreement, which action or failure, if taken after the date of this
Agreement, would represent or result in a material breach or violation of any of
the covenants and agreements of Riva Bancshares provided in Articles 7 or 8 of
this Agreement.
6.7 Tax Matters.
(a) As of the date of this Agreement, no federal, state, local
and foreign Tax Returns have been required to be filed by or on behalf
of Riva Bancshares. There is no audit examination, deficiency, or
refund Litigation with respect to any Taxes that is reasonably likely
to result in a determination that would have, individually or in the
aggregate, a Material Adverse Effect on Riva Bancshares, except as
reserved against in the Riva Bancshares Financial Statements delivered
prior to the date of this Agreement. All Taxes and other liabilities
due with respect to completed and settled examinations or concluded
Litigation have been paid.
(b) Adequate provision for any Taxes due or to become due for
Riva Bancshares for the period or periods through and including the
date of the respective Riva Bancshares Financial Statements has been
made and is reflected on such Riva Bancshares Financial Statements.
(c) Deferred Taxes of Riva Bancshares have been adequately
provided for in the Riva Bancshares Financial Statements.
(d) To the Knowledge of Riva Bancshares, Riva Bancshares is in
compliance with, and its records contain all information and documents
(including properly completed Internal Revenue Service Forms W-9)
necessary to comply with, all applicable information reporting and Tax
withholding requirements under federal, state, and local Tax Laws, and
such records identify with specificity all accounts subject to backup
withholding under Section 3406 of the Internal Revenue Code, except for
such instances of noncompliance and such omissions as are not
reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on Riva Bancshares.
6.8 Compliance With Laws. Prior to the consummation of the
transactions contemplated by this Agreement, Riva Bancshares will become duly
registered as a bank holding company under the BHC Act. Riva Bancshares has in
effect all Permits necessary for it to own, lease, or operate its material
Assets and to carry on its business as now conducted, except for those Permits
the absence of which are not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Riva Bancshares. Riva Bancshares is not
presently in Default under or in violation of any such Permit, other than
Defaults which are not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Riva Bancshares. Riva Bancshares:
(a) is not in violation of any Laws, Orders, or Permits
applicable to its business or employees conducting its business, except
for violations which are not reasonably likely to have, individually or
in the aggregate, a Material Adverse Effect on Riva Bancshares; and
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(b) has not received any notification or communication from any
agency or department of federal, state, or local government or any
Regulatory Authority or the staff thereof (i) asserting that Riva
Bancshares is not in compliance with any of the Laws or Orders which
such governmental authority or Regulatory Authority enforces, where
such noncompliance is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Riva Bancshares, (ii)
threatening to revoke any Permits, the revocation of which is
reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on Riva Bancshares, or (iii) requiring Riva Bancshares
to enter into or consent to the issuance of a cease and desist order,
formal agreement, directive, commitment, or memorandum of
understanding, or to adopt any board resolution or similar undertaking,
which restricts materially the conduct of its business, or in any
manner relates to its capital adequacy, its credit or reserve policies,
its management or the payment of dividends.
6.9 Assets. Except as disclosed in Section 6.9(a) of the Disclosure
Schedule, Riva Bancshares has good and marketable title, free and clear of all
Liens (except for those Liens which are not likely to have a Material Adverse
Effect on Riva Bancshares), to all of its respective material Assets, reflected
in Riva Bancshares Financial Statements as being owned by Riva Bancshares as of
the date hereof. All material tangible properties used in the business of Riva
Bancshares are in good condition, reasonable wear and tear excepted, and are
usable in the ordinary course of business consistent with Riva Bancshares' past
practices. All Assets which are material to Riva Bancshares' business on a
consolidated basis, held under leases or subleases by Riva Bancshares, are held
under valid Contracts enforceable in accordance with their respective terms
(except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or other Laws affecting the enforcement of
creditors' rights generally and except that the availability of the equitable
remedy of specific performance or injunctive relief is subject to the discretion
of the court before which any proceedings may be brought), and each such
Contract is in full force and effect. Riva Bancshares currently maintains
insurance in amounts, scope, and coverage as disclosed in Section 6.9(b) of the
Disclosure Schedule. Riva Bancshares has not received written notice from any
insurance carrier that (i) such insurance will be canceled or that coverage
thereunder will be reduced or eliminated, or (ii) premium costs with respect to
such policies of insurance will be substantially increased. Except as disclosed
in Section 6.9(c) of the Disclosure Schedule, to the Knowledge of Riva
Bancshares there are presently no occurrences giving rise to a claim under such
policies of insurance and no notices have been given by Riva Bancshares under
such policies.
6.10 Legal Proceedings. There is no Litigation instituted or
pending, or, to the Knowledge of Riva Bancshares, threatened (or unasserted but
considered probable of assertion and which if asserted would have at least a
reasonable probability of an unfavorable outcome) against Riva Bancshares, or
against any Asset, interest, or right of any of them, that is reasonably likely
to have, individually or in the aggregate, a Material Adverse Effect on Riva
Bancshares, nor are there any Orders of any Regulatory Authorities, other
governmental authorities, or arbitrators outstanding against Riva Bancshares,
that are reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on Riva Bancshares.
6.11 Reports. Since its incorporation, Riva Bancshares has filed all
reports and statements, together with any amendments required to be made with
respect thereto, that it was required to file with Regulatory Authorities
(except, in the case of state securities authorities, failures to file which are
not reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on Riva Bancshares). As of their respective dates, each of such
reports and documents, including the financial statements, exhibits, and
schedules thereto, complied in all material respects with all applicable Laws.
As of its respective date, each such report and document did not, in all
material respects, 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 made therein, in light of the circumstances under which they were
made, not misleading.
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6.12 Statements True and Correct. None of the information supplied
or to be supplied by Riva Bancshares for inclusion in the Registration Statement
to be filed by Riva Bancshares with the SEC, will, when the Registration
Statement becomes effective, be false or misleading with respect to any material
fact, or omit to state any material fact necessary to make the statements
therein not misleading. None of the information supplied or to be supplied by
Riva Bancshares for inclusion in the Proxy Statement to be mailed to Premier's
shareholders in connection with the Shareholders' Meeting, and any other
documents to be filed by Riva Bancshares or with the SEC or any other Regulatory
Authority in connection with the transactions contemplated hereby, will, at the
respective time such documents are filed, and with respect to the Proxy
Statement, when first mailed to the shareholders of Premier, be false or
misleading with respect to any material fact, or omit to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, or, in the case of the Proxy Statement or
any amendment thereof or supplement thereto, at the time of the Shareholders'
Meeting, be false or misleading with respect to any material fact, or omit to
state any material fact necessary to correct any statement in any earlier
communication with respect to the solicitation of any proxy for the
Shareholders' Meeting. All documents that Riva Bancshares is responsible for
filing with any Regulatory Authority in connection with the transactions
contemplated hereby will comply as to form in all material respects with the
provisions of applicable Law.
6.13 Accounting, Tax and Regulatory Matters. To the Knowledge of
Riva Bancshares neither Riva Bancshares nor any affiliate has taken or agreed to
take any action or has any Knowledge of any fact or circumstance that is
reasonably likely to (i) prevent the transactions contemplated hereby, including
the Merger, from qualifying as a reorganization within the meaning of Section
368(a) of the Internal Revenue Code, or (ii) materially impede or delay receipt
of any Consents of Regulatory Authorities referred to in Section 9.1(b) of this
Agreement or result in the imposition of a condition or restriction of the type
referred to in the last sentence of such Section.
6.14 Environmental Matters.
(a) To the Knowledge of Riva Bancshares, except as disclosed in
Section 6.14(a) of the Disclosure Schedule, Riva Bancshares, its
Participation Facilities, and its Loan Properties are, and have been,
in compliance with all Environmental Laws, except for violations which
are not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Riva Bancshares.
(b) Except as disclosed in Section 6.14(b) of the Disclosure
Schedule, there is no Litigation pending, or, to the Knowledge of Riva
Bancshares, threatened before any court, governmental agency, or
authority or other forum in which Riva Bancshares or any of its Loan
Properties or Participation Facilities has been or, with respect to
threatened Litigation, may be named as a defendant or potentially
responsible party (i) for alleged noncompliance (including by any
predecessor) with any Environmental Law or (ii) relating to the release
into the environment of any Hazardous Material, whether or not
occurring at, on, under, or involving any of its Loan Properties or
Participation Facilities, except for such Litigation pending or
threatened that is not reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on Riva Bancshares.
(c) To the Knowledge of Riva Bancshares, except as disclosed in
Section 6.14(c) of the Disclosure Schedule, there is no reasonable
basis for any Litigation of a type described above in
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Section 6.14(b), except such as is not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Riva
Bancshares.
(d) To the Knowledge of Riva Bancshares, except as disclosed in
Section 6.14(d) of the Disclosure Schedule, during the period of (i)
Riva Bancshares' ownership or operation of any of their respective
properties, (ii) Riva Bancshares' participation in the management of
any Participation Facility, or (iii) Riva Bancshares' holding a
security interest in a Loan Property, to the Knowledge of Riva
Bancshares there have been no releases of Hazardous Material in, on,
under, or affecting any Participation Facility or Loan Property of Riva
Bancshares, except such as are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Riva
Bancshares.
6.15 Derivatives Contracts. Riva Bancshares is not a party to or has
agreed to enter into any Derivatives Contracts.
6.16 Outstanding Premier Common Stock. As of the date of this
Agreement, Riva Bancshares does not beneficially own any shares of Premier
Capital Stock. During the term of this Agreement, Riva Bancshares shall not
purchase or otherwise acquire beneficial ownership of any Premier Common Stock
except pursuant to the terms of this Agreement.
6.17 Material Contracts. Except as disclosed in Section 6.17 of the
Disclosure Schedule, Riva Bancshares is not a party to or subject to the
following: (i) any employment, severance, termination, consulting, or retirement
Contract providing for aggregate payments to any Person in any calendar year in
excess of $50,000, (ii) any Contract relating to the borrowing of money by Riva
Bancshares or the guarantee by Riva Bancshares of any such obligation exceeding
$50,000 (other than Contracts evidencing deposit liabilities, purchases of
federal funds, fully-secured repurchase agreements, and Federal Home Loan Bank
advances of depository institution Subsidiaries, trade payables, and Contracts
relating to borrowings or guarantees made in the ordinary course of business),
and (iii) any other Contract or amendment thereto as of the date of this
Agreement not made in the ordinary course of business to which Riva Bancshares
is a party or by which it is bound (together with all Contracts referred to in
Sections 6.9 and 6.18 of this Agreement, the "Riva Bancshares Contracts"). With
respect to each Riva Bancshares Contract and except as disclosed in Section 6.17
of the Disclosure Schedule: (i) the Contract is in full force and effect; (ii)
Riva Bancshares is not in Default thereunder, other than Defaults which are not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on Riva Bancshares; (iii) Riva Bancshares has not repudiated or waived
any material provision of any such Contract; and (iv) no other party to any such
Contract is, to the Knowledge of Riva Bancshares, in Default in any respect,
other than Defaults which are not reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on Riva Bancshares, or has repudiated
or waived any material provision thereunder. Except for Federal Home Loan Bank
advances, all of the indebtedness of Riva Bancshares for money borrowed is
prepayable at any time by Riva Bancshares, without penalty or premium.
6.18 Employee Benefit Plans.
(a) Riva Bancshares has disclosed in Section 6.18(a) of the
Disclosure Schedule and has delivered or made available to Premier
prior to the execution of this Agreement, copies in each case of, all
pension, retirement, profit-sharing, deferred compensation, stock
option, employee stock ownership, severance pay, vacation, bonus, or
other incentive plans, all other written employee
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programs, arrangements, or agreements, all medical, vision, dental, or
other health plans, all life insurance plans, and all other employee
benefit plans or fringe benefit plans, including "employee benefit
plans" (as that term is defined in Section 3(3) of ERISA), currently
adopted, maintained by, sponsored in whole or in part by, or
contributed to by Riva Bancshares for the benefit of employees,
retirees, dependents, spouses, directors, independent contractors, or
other beneficiaries and under which employees, retirees, dependents,
spouses, directors, independent contractors, or other beneficiaries are
eligible to participate (collectively, the "Riva Bancshares Benefit
Plans"). Any of the Riva Bancshares Benefit Plans which is an "employee
pension benefit plan" (as that term is defined in Section 3(2) of
ERISA), is referred to herein as a "Riva Bancshares ERISA Plan." No
Riva Bancshares Benefit Plan is or has been a multiemployer plan within
the meaning of Section 3(37) of ERISA.
(b) Except as disclosed in Section 6.18(b) of the Disclosure
Schedule, all Riva Bancshares Benefit Plans are in compliance with the
applicable terms of ERISA, the Internal Revenue Code, and any other
applicable Laws the breach or violation of which are reasonably likely
to have, individually or in the aggregate, a Material Adverse Effect on
Riva Bancshares, and each Riva Bancshares ERISA Plan which is intended
to be qualified under Section 401(a) of the Internal Revenue Code has
received a favorable determination letter from the Internal Revenue
Service, and Riva Bancshares is not aware of any circumstances likely
to result in revocation of any such favorable determination letter. To
the Knowledge of Riva Bancshares, it has not engaged in a transaction
with respect to any Riva Bancshares Benefit Plan that, assuming the
taxable period of such transaction expired as of the date hereof, would
subject it to a Tax imposed by either Section 4975 of the Internal
Revenue Code or Section 502(i) of ERISA in amounts which are reasonably
likely to have, individually or in the aggregate, a Material Adverse
Effect on Riva Bancshares.
(c) Except as disclosed in Section 6.18(c) of the Disclosure
Schedule, no Riva Bancshares ERISA Plan has any "unfunded current
liability" (as that term is defined in Section 302(d)(8)(A) of ERISA)
and the fair market value of the assets of any such plan exceeds the
plan's "benefit liabilities," as that term is defined in Section
4001(a)(16) of ERISA, when determined under actuarial factors that
would apply if the plan terminated in accordance with all applicable
legal requirements. Except as disclosed in Section 6.18(c) of the
Disclosure Schedule, since the date of the most recent actuarial
valuation, there has been (i) no material change in the financial
position of any Riva Bancshares ERISA Plan, (ii) no change in the
actuarial assumptions with respect to any Riva Bancshares ERISA Plan,
and (iii) no increase in benefits under any Riva Bancshares ERISA Plan
as a result of plan amendments or changes in applicable Law which is
reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on Riva Bancshares or materially adversely affect the
funding status of any such plan. Neither any Riva Bancshares ERISA Plan
nor any "single-employer plan," within the meaning of Section
4001(a)(15) of ERISA, currently or formerly maintained by Riva
Bancshares, or the single-employer plan of any entity which is
considered one employer with Riva Bancshares under Section 4001 of
ERISA or Section 414 of the Internal Revenue Code or Section 302 of
ERISA (whether or not waived) (an "ERISA Affiliate") has an
"accumulated funding deficiency" within the meaning of Section 412 of
the Internal Revenue Code or Section 302 of ERISA, which is reasonably
likely to have a Material Adverse Effect on Riva Bancshares. Riva
Bancshares has not provided, and is not required to provide, security
to an Riva Bancshares ERISA Plan or to any single-employer plan of an
ERISA Affiliate pursuant to Section 401(a)(29) of the Internal Revenue
Code.
(d) Within the six-year period preceding the Effective Time, no
Liability under Subtitle C or D of Title IV of ERISA has been or is
expected to be incurred by Riva Bancshares with respect
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to any ongoing, frozen, or terminated single-employer plan or the
single-employer plan of any ERISA Affiliate, which Liability is
reasonably likely to have a Material Adverse Effect on Riva Bancshares.
Riva Bancshares has not incurred any withdrawal Liability with respect
to a multiemployer plan under Subtitle B of Title IV of ERISA
(regardless of whether based on contributions of an ERISA Affiliate),
which Liability is reasonably likely to have a Material Adverse Effect
on Riva Bancshares. No notice of a "reportable event," within the
meaning of Section 4043 of ERISA for which the 30-day reporting
requirement has not been waived, has been required to be filed for any
Riva Bancshares ERISA Plan or by any ERISA Affiliate within the
12-month period ending on the date hereof.
(e) Except as disclosed in Section 6.18(e) of the Disclosure
Schedule, Riva Bancshares has no Liability for retiree health and life
benefits under any of the Riva Bancshares Benefit Plans and there are
no restrictions on the rights of Riva Bancshares to amend or terminate
any such plan without incurring any Liability thereunder, which
Liability is reasonably likely to have a Material Adverse Effect on
Riva Bancshares.
(f) Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby will (i)
result in any payment (including severance, unemployment compensation,
golden parachute, or otherwise) becoming due to any director or any
employee of Riva Bancshares, (ii) increase any benefits otherwise
payable under any Riva Bancshares Benefit Plan, or (iii) result in any
acceleration of the time of payment or vesting of any such benefit,
where such payment, increase, or acceleration is reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on
Riva Bancshares.
(g) The actuarial present values of all accrued deferred
compensation entitlements (including entitlements under any executive
compensation, supplemental retirement, or employment agreement) of
employees and former employees of Riva Bancshares and their respective
beneficiaries, other than entitlements accrued pursuant to funded
retirement plans subject to the provisions of Section 412 of the
Internal Revenue Code or Section 302 of ERISA, have been fully
reflected on the Riva Bancshares Financial Statements to the extent
required by and in accordance with GAAP.
6.19 Year 2000. All computer software and hardware necessary for the
conduct of business by Riva Bancshares (the "Software") is designed to be used
before, on, and after January 1, 2000 and the Software will operate during each
such time period without error relating to the year 2000, specifically including
any error relating to, or the product of, any date data representing or
referring to any particular date. As used in the preceding sentence, "operate"
further includes, but is not limited to, accepting input of dates without
ambiguity, outputting all dates without ambiguity, and performing calculations,
comparisons, extractions, sorting and any other processing or taking actions or
making decisions using dates or time periods without suffering any abends,
aborts, invalid or incorrect results or other interruptions, whether before, on,
or after January 1, 2000. Further, Riva Bancshares has received all year 2000
examinations and certifications as required by applicable Law and will, prior to
the Effective Time, make available for Riva Bancshares' review all such
examinations and certifications.
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ARTICLE 7
CONDUCT OF BUSINESS PENDING CONSUMMATION
7.1 Affirmative Covenants of Premier. Unless the prior written
consent of Riva Bancshares shall have been obtained which consent shall not be
unreasonably withheld, and except as otherwise expressly contemplated herein,
Premier shall and shall cause each of its Subsidiaries: (i) operate its business
only in the usual, regular, and ordinary course, (ii) use its reasonable best
efforts to preserve intact its business organization and Assets and maintain its
rights and franchises, (iii) use its reasonable best efforts to maintain its
current employee relationships, and (iv) take no action which would materially
adversely affect the ability of any Party to obtain any Consents required for
the transactions contemplated hereby without imposition of a condition or
restriction of the type referred to in the last sentence of Section 9.1(b) of
this Agreement, or materially adversely affect the ability of any Party to
perform its covenants and agreements under this Agreement.
7.2 Negative Covenants of Premier. From the date of this Agreement
until the earlier of the Effective Time or the termination of this Agreement,
Premier covenants and agrees that it will not do or agree or commit to do, any
of the following without the prior written consent of the chief executive
officer of Riva Bancshares:
(a) amend the Articles of Incorporation, Bylaws, or other
governing instruments of any Premier Company, except as expressly
contemplated by this Agreement; or
(b) incur any additional debt obligation or other obligation
for borrowed money in excess of an aggregate of $50,000 (for every
Premier Company on a consolidated basis) except in the ordinary course
of the business of Premier Subsidiaries consistent with past practices
(it being understood and agreed that the incurrence of indebtedness in
the ordinary course of business shall include, without limitation,
creation of deposit liabilities, purchases of federal funds, advances
from the Federal Reserve Bank or Federal Home Loan Bank, and entry into
repurchase agreements fully secured by U.S. government or agency
securities), or impose, or suffer the imposition, on any Asset of any
Premier Company of any Lien or permit any such Lien to exist which Lien
or Liens individually or in the aggregate secure an obligation not in
excess of $50,000 (other than in connection with deposits, repurchase
agreements, bankers acceptances, "treasury tax and loan" accounts
established in the ordinary course of business, the satisfaction of
legal requirements in the exercise of trust powers, and Liens in effect
as of the date hereof that are disclosed in the Disclosure Schedule)
provided, however, that nothing in this paragraph shall prohibit
Premier or any Premier Subsidiary from honoring any contractual
obligation in existence on the date of this Agreement; or
(c) repurchase, redeem, or otherwise acquire or exchange (other
than exchanges in the ordinary course under employee benefit plans),
directly or indirectly, any shares, or any securities convertible into
any shares, of the capital stock of any Premier Company, or declare or
pay any dividend or make any other distribution in respect of Premier's
capital stock; or
(d) except for this Agreement, or pursuant to the exercise of
stock options outstanding as of the date hereof and pursuant to the
terms thereof in existence on the date hereof, or as disclosed in
Section 7.2(d) of the Disclosure Schedule, issue, sell, pledge,
encumber, authorize the issuance of, enter into any Contract to issue,
sell, pledge, encumber, or authorize the issuance of, or otherwise
permit to become outstanding, any additional shares of Premier Common
Stock, or any stock
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appreciation rights, or any option, warrant, conversion, or other right
to acquire any such stock, or any security convertible into any such
stock; or
(e) adjust, split, combine, reclassify or declare and pay any
dividend or other distribution on any capital stock of any Premier
Company or issue or authorize the issuance of any other securities in
respect of or in substitution for shares of Premier Common Stock, or
sell, lease, mortgage, or otherwise dispose of or otherwise encumber
(x) any shares of capital stock of any Premier Subsidiary, or (y) any
Asset other than in the ordinary course of business for reasonable and
adequate consideration; or
(f) except for purchases of United States Treasury securities
or United States Government agency securities, which in either case
have maturities of five years or less, purchase any securities or make
any material investment, either by purchase of stock or securities,
contributions to capital, Asset transfers, or purchase of any Assets,
in any Person other than a wholly owned Premier Subsidiary, or
otherwise acquire direct or indirect control over any Person, other
than in connection with (i) foreclosures in the ordinary course of
business, (ii) acquisitions of control by a depository institution
Subsidiary, in its fiduciary capacity, or (iii) the creation of new
wholly owned Subsidiaries organized to conduct or continue activities
otherwise permitted by this Agreement; or
(g) grant any increase in compensation or benefits to the
officers or directors of any Premier Company (provided, however, that
Premier may increase the compensation of non-officer employees by not
more than 5% of such employees' annual compensation if such increase is
consistent with past practice); pay any severance or termination pay or
any bonus other than pursuant to written policies or written Contracts
in effect on the date of this Agreement and as disclosed in Section
7.2(g) of the Disclosure Schedule; enter into or amend any severance
agreements with officers of any Premier Company; or voluntarily
accelerate the vesting of any stock options or other stock-based
compensation or employee benefits; or
(h) enter into or amend any employment Contract between any
Premier Company and any Person (unless such amendment is required by
Law) which provides that such Premier Company does not have the
unconditional right to terminate without Liability (other than
Liability for services already rendered), at any time on or after the
Effective Time; or
(i) adopt any new employee benefit plan of any Premier Company
or make any material change in or to any existing employee benefit
plans of any Premier Company other than any such change that is
required by Law or that, in the opinion of counsel, is necessary or
advisable to maintain the tax qualified status of any plan; or
(j) make any significant change in any Tax or accounting
methods or systems of internal accounting controls, except as may be
appropriate to conform to changes in Tax Laws or regulatory accounting
requirements or GAAP; or
(k) commence any Litigation other than in accordance with past
practice or in the ordinary course of business or settle any Litigation
involving any Liability of Premier Company which may have a Material
Adverse Effect on Premier or result in the imposition of restrictions
upon the operations of any Premier Company which may have a Material
Adverse Effect on Premier without first consulting with Riva
Bancshares; or
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(l) except in the ordinary course of business, modify, amend,
or terminate any material Contract other than renewals without material
adverse change of terms, or waive, release, compromise, or assign any
material rights or claims; or
(m) make any investment in excess of $50,000 either by purchase
of stock or securities, contributions to capital, property transfers,
or purchase of any property or assets of any other individual,
corporation or other entity other than a wholly owned Subsidiary
thereof; or
(n) sell, transfer, mortgage, encumber or otherwise dispose of
any of its material properties or assets to any individual, corporation
or other entity other than a direct or indirect wholly owned
Subsidiary, or cancel, release or assign any indebtedness to any such
Person or any claims held by any such Person, except in the ordinary
course of business consistent with past practice or pursuant to
contracts or agreements in force at the date of this Agreement.
7.3 Covenants of Riva Bancshares. From the date of this Agreement
until the earlier of the Effective Time or the termination of this Agreement,
Riva Bancshares covenants and agrees that it shall (i) continue to conduct its
business and the business of its Subsidiaries in a manner designed in its
reasonable judgment, to enhance the long-term value of the Riva Bancshares
Common Stock and the business prospects of Riva Bancshares, and (ii) take no
action which would (a) materially adversely affect the ability of any Party to
obtain any Consents required for the transactions contemplated hereby without
imposition of a condition or restriction of the type referred to in the last
sentence of Section 9.1(b) of this Agreement, or (b) materially adversely affect
the ability of any Party to perform its covenants and agreements under this
Agreement; provided, that the foregoing shall not prevent Riva Bancshares from
discontinuing or disposing of any of its Assets or business if such action is,
in the judgment of Riva Bancshares, desirable in the conduct of the business of
Riva Bancshares. Riva Bancshares further covenants and agrees that it will not,
without the prior written consent of the Chairman and Chief Executive Officer of
Premier, which consent shall not be unreasonably withheld, amend the Certificate
of Incorporation or Bylaws of Riva Bancshares, in each case in any manner
adverse to the holders of Premier Common Stock, issue additional Common Stock of
Riva Bancshares, or warrants or options to purchase Common Stock of Riva
Bancshares; or make an Acquisition Proposal to any individual or entity.
7.4 Adverse Changes In Condition. Each Party agrees to give written
notice promptly to the other Party upon becoming aware of the occurrence or
impending occurrence of any event or circumstance relating to it which (i) is
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on it or (ii) would cause or constitute a material breach of any of its
representations, warranties, or covenants contained herein, and to use its
reasonable best efforts to prevent or promptly to remedy the same.
7.5 Reports. Each Party and their respective Subsidiaries shall
file all reports required to be filed by each of them with Regulatory
Authorities between the date of this Agreement and the Effective Time and shall
deliver to each other copies of all such reports promptly after the same are
filed. If financial statements are contained in any such reports filed with the
SEC, such financial statements will fairly present the consolidated financial
position of the entity filing such statements as of the dates indicated and the
consolidated results of operations, changes in shareholders' equity, and cash
flows for the periods then ended in accordance with GAAP (subject in the case of
Riva Bancshares financial statements to normal recurring year-end adjustments
that are not material and except for the absence of certain footnote information
in the unaudited financial statements). As of their respective dates, such
reports filed with the SEC will comply in all material respects with the
Securities Laws and will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. Any financial statements
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contained in any other reports to another Regulatory Authority shall be prepared
in accordance with Laws applicable to such reports.
ARTICLE 8
ADDITIONAL AGREEMENTS
8.1 Registration Statement; Proxy Statement; Shareholder Approval.
As soon as practicable after execution of this Agreement (in no event later than
May 31, 1999), Riva Bancshares shall file the Registration Statement related to
Riva Bancshares' proposed Initial Public Offering ("IPO") and Riva Bancshares
and Premier shall file the Registration Proxy Statement in connection with the
Merger with the SEC, and shall use their reasonable best efforts to cause the
Registration Statement and the Registration Proxy Statement to become effective
under the 1933 Act and take any action required to be taken under the applicable
state blue sky or securities Laws in connection with the issuance of the shares
of Riva Bancshares Common Stock upon consummation of the Merger. Premier shall
furnish all information concerning it and the holders of its capital stock as
Riva Bancshares may reasonably request in connection with such action. Premier
shall call a Shareholders' Meeting, to be held on a date that is determined by
the Parties to be a mutually desirable date, which date shall be as soon as
practicable after the Registration Statement is declared effective by the SEC,
for the purpose of voting upon approval of this Agreement and such other related
matters as it deems appropriate. In connection with the Shareholders' Meeting,
(i) Premier shall prepare a Proxy Statement relating to the Merger and mail such
Proxy Statement to its shareholders, (ii) the Parties shall furnish to each
other all information concerning them that they may reasonably request in
connection with the preparation of such Proxy Statement, (iii) the Board of
Directors of Premier shall recommend (subject to compliance with their fiduciary
duties under applicable law as advised by counsel) to its shareholders the
approval of this Agreement, and (iv) the Board of Directors and officers of
Premier shall (subject to compliance with their fiduciary duties under
applicable law as advised by counsel) use their reasonable best efforts to
obtain such shareholders' approval.
8.2 Share Purchases by and Option Grants to Premier Shareholders.
To induce Premier to enter into this Agreement, Premier Shareholders shall be
entitled to the following:
(i) In addition to any shares received in the Merger, Premier
shareholders shall not be limited in the number of shares which they
may purchase in Riva Bancshares' IPO at the initial public offering
price, subject to any required regulatory approvals for purchases that
result in a Premier shareholder owning more than ten percent (10%) of
the total outstanding shares of Riva Bancshares.
(ii) Upon completion of the IPO, Riva Bancshares will grant to
each Premier shareholder (other than Xxxxx X. Xxxxx) (collectively, the
"Premier Shareholders") a warrant to purchase shares of Riva Bancshares
at the initial public offering price for a period of ten (10) years
from the date of such grant. These warrants will be granted on the same
terms and conditions as the warrants referenced in Section 6.3 of this
Agreement. The number of shares granted under each Premier
Shareholder's warrant will be determined on a pro rata basis, whereby
each Premier Shareholder will receive a warrant to purchase 3.605
shares of Riva Bancshares Common Stock for each share of Premier owned
by such shareholder prior to the Merger. The aggregate number of shares
subject to these warrants shall not exceed 140,000. Riva Bancshares
shall not be required to issue fractional shares upon the exercise of
such warrants. The amount of shares issuable upon exercise of the
warrants shall be rounded to the nearest whole number.
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(iii) Upon completion of the IPO, Riva Bancshares will grant to
each Premier shareholder, including Xxxxx X. Xxxxx, a warrant to
purchase shares of Riva Bancshares at 120% of the initial public
offering price for a period of ten (10) years from the date of such
grant. With the exception of the exercise price, these warrants shall
be granted on the same terms and conditions as the warrants referenced
in Section 6.3 of this Agreement. The number of shares granted under
each of these warrants will be determined on a pro rata basis, whereby
each Premier shareholder will receive a warrant to purchase 5.020
shares of Riva Bancshares Common Stock for each share of Premier owned
by such shareholder prior to the Merger. The aggregate number of shares
subject to these warrants shall not exceed 210,000. Riva Bancshares
shall not be required to issue fractional shares upon the exercise of
such warrants. The amount of shares issuable upon exercise of the
warrants shall be rounded to the nearest whole number.
(iv) for a period of forty-eight (48) months after the closing
of the IPO, if any additional options are granted to any Premier
Shareholder who serves as an advisory director of a banking subsidiary
of Riva Bancshares or to any other non-employee Premier Shareholder;
then warrants will be granted to each Premier Shareholder on a pro rata
basis, whereby each Premier Shareholder will receive a warrant to
purchase additional shares in the same proportion as the amount of
option shares granted to each advisory director or non-employee Premier
Shareholder relative to the amount of shares owned by such advisory
director or non-employee shareholder at the Effective Time of the
Merger. For example, if an advisory director or any non-employee
Premier Shareholder owned 3,000 shares of Premier at the Effective Time
of the Merger and is thereafter granted options to purchase 1,000
shares, then each Premier Shareholder will a warrant for one-third
(i.e., 1,000 / 3,000) of the amount of shares owned by such shareholder
at the Effective Time of the Merger. Therefore, pursuant to the example
above, a Premier Shareholder who owns 1,000 shares of Premier would
receive warrants to purchase 333 shares of Riva Bancshares.
8.3 Restrictions on Transfer of Shares Held by Premier Directors,
Officers and Shareholders.
(a) Premier and its directors will agree that, for a period of
180 days after the effective date of the Company's Registration
Statement on Form S-1 related to the proposed IPO, they shall not
directly or indirectly sell, offer to sell, contract to sell, solicit
an offer to buy, grant any option, right or warrant for the purchase or
sale of, assign, pledge, distribute or otherwise transfer, dispose of,
encumber, (or make any announcement with respect to any of the
foregoing), any shares of common stock received pursuant to Section 3.1
of this Agreement, which such director or officer currently owns, has
the right to dispose of or hereafter acquire, either of record or
beneficially, nor will any director or officer request the registration
of the offer or sale of any of the foregoing.
(b) Premier Shareholders, except for any shareholder who serves
as a director (whose Riva Bancshares shares will be restricted as
described in Section 8.3(a) above) shall not directly or indirectly
sell, offer to sell, contract to sell, solicit an offer to buy, grant
any option, right or warrant for the purchase or sale of, assign,
pledge, distribute or otherwise transfer, dispose of, encumber, (or
make any announcement with respect to any of the foregoing), any shares
of common stock received pursuant to Section 3.1 of this Agreement,
which such shareholder owns, has the right to dispose of or hereafter
acquire, either of record or beneficially, except as permitted in the
schedule set forth below:
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Aggregate Percentage of Shares Issued
to Such Person Pursuant to Section 3.1
TIME TABLE Permitted for Sale by Such Person
---------- --------------------------------------
From the date of pricing of the IPO
through the date of closing of the IPO No sales are permitted
From 1 to 30 days after closing 10%
From 31 to 60 after closing 20%
From 61 to 90 days after closing 40%
From 91 to 120 days after closing 60%
From 121 days after closing and after 100%
8.4 Agreement as to Efforts to Consummate. Subject to the terms and
conditions of this Agreement, each Party agrees to use, and to cause its
Subsidiaries to use, its reasonable best efforts to take, or cause to be taken,
all actions, and to do, or cause to be done, all things necessary, proper, or
advisable under applicable Laws to consummate and make effective, as soon as
practicable after the date of this Agreement, the transactions contemplated by
this Agreement, including the use of their respective reasonable best efforts to
lift or rescind any Order adversely affecting its ability to consummate the
transactions contemplated herein and to cause to be satisfied the conditions
referred to in Article 9 of this Agreement; provided, that nothing herein shall
preclude either Party from exercising its rights under this Agreement. Each
Party shall use, and shall cause each of its Subsidiaries to use, its reasonable
best efforts to obtain all Permits and Consents necessary or desirable for the
consummation of the transactions contemplated by this Agreement.
8.5 Applications. Riva Bancshares shall promptly prepare and file,
and Premier shall cooperate in the preparation and, where appropriate, filing
of, applications with all Regulatory Authorities having jurisdiction over the
transactions contemplated by this Agreement seeking the requisite Consents
necessary to consummate the transactions contemplated by this Agreement and
thereafter use its reasonable best efforts to cause the Merger to be consummated
as expeditiously as possible.
8.6 Access to Information; Confidentiality. From the date hereof to
the Effective Time or termination pursuant to Article 10 of this Agreement, upon
reasonable notice and subject to applicable Laws, Riva Bancshares and Premier
shall afford each other, and each other's accountants, counsel, and other
representatives, during normal working hours for the period of time prior to the
Effective Time, reasonable access to all of its and its Subsidiaries'
properties, books, contracts, commitments, and records and, during such period,
each shall furnish promptly to the other party (i) a copy of each report,
schedule, and other document filed or received by it or any of its Subsidiaries
during such period pursuant to the requirements of the Securities Laws, (ii) a
copy of all filings made with any Regulatory Authorities or other governmental
entities in connection with the transactions contemplated by this Agreement and
all written communications received from such Regulatory Authorities and
governmental entities related thereto, and (iii) all other information
concerning its or its Subsidiaries' business, properties and personnel as such
other party may reasonably request, including reports of condition filed with
Regulatory Authorities. In this regard, without limiting the generality of the
foregoing, each of the parties hereto shall notify the other parties hereto
promptly upon the receipt by it of any comments from the SEC, or its staff, and
of any requests by the SEC for amendments or supplements to the Registration
Statement or the Proxy Statement or for additional information and will supply
the other parties hereto with copies of all correspondence between it and its
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representatives, on the one hand, and the SEC or the members of its staff or any
other government official, on the other hand, with respect to the Registration
Statement or the Proxy Statement. Each party hereto shall, and shall cause its
advisors and representatives to (x) conduct its investigation in such a manner
which will not unreasonably interfere with the normal operations, customers or
employee relations of the other and shall be in accordance with procedures
established by the parties having the due regard for the foregoing, and (y)
refrain from using for any purposes other than as set forth in this Agreement,
and shall treat as confidential, all information obtained by each hereunder or
in connection herewith and not otherwise known to them prior to the Effective
Time. Except as otherwise agreed to in writing, Riva Bancshares and Premier
shall be bound by and all information given or received pursuant to this Section
8.5 shall be subject to the terms and conditions of that certain confidentiality
agreement entered into between Riva Bancshares and Premier dated November 19,
1998, which shall survive the termination of this Agreement.
8.7 Current Information. During the period from the date of this
Agreement until the Effective Time or termination of this Agreement pursuant to
Article 10 hereof, each of Premier and Riva Bancshares shall, and shall cause
its representatives to, confer on a regular and frequent basis with
representatives of the other. Each of Premier and Riva Bancshares shall promptly
notify the other of (i) any material change in its business or operations, (ii)
any material complaints, investigations, or hearings (or communications
indicating that the same may be contemplated) of any Regulatory Authority, (iii)
the institution or threat of material Litigation involving such party, or (iv)
the occurrence or nonoccurrence, of an event or condition, the occurrence, or
nonoccurrence, of which would be reasonably expected to cause any of such
party's representations or warranties set forth herein to be false or untrue in
any respect as of the Effective Time; and in each case shall keep the other
fully informed with respect thereto.
8.8 Other Actions. No Party shall, or shall permit any of its
Subsidiaries, if any, to, take any action, except in every case as may be
required by applicable Law, that would or is intended to result in (i) any of
its representations and warranties set forth in this Agreement that are
qualified as to materiality being or becoming untrue, (ii) any of such
representations and warranties that are not so qualified become untrue in any
material manner having a Material Adverse Effect, (iii) any of the conditions
set forth in this Agreement not being satisfied or in a violation of any
provision of this Agreement, or (iv) adversely affecting the ability of any of
them to obtain any of the Consents or Permits from Regulatory Authorities
(unless such action is required by sound banking practice).
8.9 Press Releases. Prior to the Effective Time, Premier and Riva
Bancshares shall consult with each other as to the form and substance of any
press release or other public disclosure materially related to this Agreement or
any other transaction contemplated hereby; provided, that nothing in this
Section 8.9 shall be deemed to prohibit any Party from making any disclosure
which its counsel deems necessary or advisable in order to satisfy such Party's
disclosure obligations imposed by Law.
8.10 No Solicitation. Except with respect to this Agreement and the
transactions contemplated hereby, from the date of this Agreement until the
Effective Time or termination pursuant to Article 10, neither a Premier Company
nor any Affiliate thereof, shall directly or indirectly solicit any Acquisition
Proposal by any Person. Except to the extent necessary to comply with the
fiduciary duties of Premier's Board of Directors, determined after consultation
with counsel, neither a Premier Company nor any Affiliate thereof, or any
Representative thereof shall furnish any nonpublic information that it is not
legally obligated to furnish or negotiate with respect to, any Acquisition
Proposal, but Premier may communicate information about such an Acquisition
Proposal to its shareholders if and to the extent that it is required to do so
in order to comply with its legal obligations as advised by counsel. Premier
shall promptly notify Riva Bancshares orally and in writing in the event that it
receives any inquiry or proposal relating to any such transaction. Premier shall
(i) immediately cease and cause to be terminated any existing activities,
discussions, or
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negotiations with any Persons conducted heretofore with respect to any of the
foregoing and (ii) direct and use its reasonable best efforts to cause of all
its Representatives not to engage in any of the foregoing.
8.11 Accounting and Tax Treatment. Each of the Parties undertakes
and agrees to use its reasonable best efforts to cause the Merger, and to take
no action which would cause the Merger not, to qualify for treatment as a
"reorganization" within the meaning of Section 368(a) of the Internal Revenue
Code for federal income tax purposes.
8.12 Anti-Takeover Provisions. Each Premier Company shall take all
necessary action to ensure that the entering into of this Agreement and the
consummation of the Merger and the other transactions contemplated hereby do not
and will not result in any super-majority voting requirements or the grant of
any rights to any Person under its Articles of Incorporation, Bylaws, or any
other governing instruments. In addition, each Premier Company shall take all
necessary steps to exempt the transactions contemplated by this Agreement from,
or if necessary challenge the validity or applicability of, ss. 351.459 RSMo of
the GBCL.
8.13 Agreement of Affiliates. Premier has disclosed in Section 8.13
of the Disclosure Schedule all Persons whom it reasonably believes are
"affiliates" of Premier for purposes of Rule 145 under the 1933 Act. Premier
shall use its reasonable best efforts to cause each such Person to deliver to
Riva Bancshares not later than 30 days prior to the Effective Time, a written
agreement, substantially in the form of Exhibit 2 attached hereto, providing
that such Person will not sell, pledge, transfer, or otherwise dispose of the
shares of Premier Common Stock held by such Person, except as contemplated by
such agreement or by this Agreement and will not sell, pledge, transfer, or
otherwise dispose of the shares of Riva Bancshares Common Stock to be received
by such Person upon consummation of the Merger except in compliance with
applicable provisions of the 1933 Act and the rules and regulations thereunder
(and Riva Bancshares shall be entitled to place restrictive legends upon
certificates for shares of Riva Bancshares Common Stock issued to affiliates of
Premier pursuant to this Agreement to enforce the provisions of this Section
8.13). Riva Bancshares shall not be required to maintain the effectiveness of
the Registration Statement under the 1933 Act for the purposes of resale of Riva
Bancshares Common Stock by such affiliates.
8.14 Employee Benefits and Contracts. Following the Effective Time,
Riva Bancshares shall provide generally to continuing officers and employees of
Premier Companies employee benefits under employee benefit plans (other than
stock option or other plans involving the potential issuance of Riva Bancshares
Common Stock), on terms and conditions which when taken as a whole are no less
favorable than those currently provided by Premier. For purposes of
participation and vesting (but not benefit accrual under any employee benefit
plans of Riva Bancshares other than the Premier Benefit Plans) under such
employee benefit plans, the service of the employees of Premier prior to the
Effective Time shall be treated as service with Riva Bancshares participating in
such employee benefit plans. Riva Bancshares shall honor in accordance with
their terms all employment, severance, consulting, and other compensation
Contracts disclosed in Section 8.13 of the Disclosure Schedule between Premier
and any current or former director, officer, or employee thereof, and all
provisions for vested benefits or other vested amounts earned or accrued through
the Effective Time under the Premier Benefit Plans.
8.15 Management Contracts. Riva Bancshares and Xxxxx X. Xxxxx have
entered into an employment agreement dated as of the date hereof which agreement
will become effective as of the Closing.
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8.16 Indemnification and Directors' Liability Insurance.
(a) Riva Bancshares shall, and shall cause the Surviving
Corporation (and its successors and assigns) to, indemnify, defend, and
hold harmless the present and former directors, officers, employees,
and agents of Premier (each, an "Indemnified Party") against all costs,
fees or expenses (including reasonable attorneys' fees), judgments,
fines, penalties, losses, claims, damages, liabilities and amounts paid
in settlement in connection with any Litigation arising out of actions
or omissions occurring at or prior to the Effective Time (including the
transactions contemplated by this Agreement) to the full extent
permitted under applicable Law and by Premier's Articles of
Incorporation and Bylaws as in effect on the date hereof, including
provisions relating to advances of expenses incurred in the defense of
any Litigation. Without limiting the foregoing, in any case in which
approval by Riva Bancshares is required to effectuate any
indemnification, Riva Bancshares shall direct, at the election of the
Indemnified Party, that the determination of any such approval shall be
made by independent counsel mutually agreed upon between Riva
Bancshares and the Indemnified Party.
(b) If Riva Bancshares or the Surviving Corporation or any of
their successors or assigns shall consolidate with or merge into any
other Person and shall not be the continuing or surviving corporation
of such consolidation or merger or shall transfer all or substantially
all of its assets to any Person, then and in each case, proper
provision shall be made so that the successors and assigns of Riva
Bancshares shall assume the obligations set forth in this Section 8.16.
(c) Prior to the Effective Time, Premier shall purchase for,
and on behalf of, its current and former officers and directors,
extended coverage under the current directors' and officers' liability
insurance policy maintained by Premier to provide for continued
coverage of such insurance for a period of five years following the
Effective Time with respect to matters occurring prior to the Effective
Time.
(d) The provisions of this Section 8.16 are intended to be for
the benefit of and shall be enforceable by, each Indemnified Party, his
or her heirs and representatives and shall survive the consummation of
the Merger and be binding on all successors and assigns of Riva
Bancshares and the Surviving Corporation.
8.17 Filings with State of Missouri. Upon the terms and subject to
the conditions of this Agreement, Premier and Riva Bancshares shall execute
articles of merger (the "Articles of Merger") and Riva Bancshares shall file the
Articles of Merger and a copy thereof with the office of the Secretary of State
of Missouri and Delaware in connection with the Closing. In addition, Riva
Bancshares shall execute and file, pursuant to ss. 351.458 RSMo of the GBCL, (i)
an agreement that Riva Bancshares will promptly pay to any Dissenting
Shareholder the amount, if any, to which such shareholder shall be entitled
under the Dissent Provisions, (ii) an agreement that Riva Bancshares may be
served with process in the State of Missouri and (iii) an irrevocable
appointment of the Secretary of State of Missouri as Riva Bancshares' agent to
accept service of process in any proceeding based upon any cause of action
against Premier arising prior to the Effective Time and any proceeding for the
enforcement of rights of any Dissenting Shareholder under the Dissent
Provisions.
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ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE
9.1 Conditions to Obligations of Each Party. The respective
obligations of each Party to perform this Agreement and consummate the Merger
and the other transactions contemplated hereby are subject to the satisfaction
of the following conditions, unless waived by both Parties pursuant to Section
11.7 of this Agreement:
(a) Shareholder Approval. The shareholders of Premier shall
have approved this Agreement and the consummation of the transactions
contemplated hereby, including the Merger, by the requisite 662/3% vote
pursuant to applicable provisions of the GBCL, and applicable Law. In
addition, the shareholders of Riva Bancshares shall have approved this
Agreement and the consummation of the transactions contemplated hereby,
including the Merger, by the requisite majority vote pursuant to
Section 251 of the DGCL, and applicable Law.
(b) Regulatory Approvals. All Consents of, filings and
registrations with, and notifications to, all Regulatory Authorities
required for consummation of the Merger shall have been obtained or
made and shall be in full force and effect and all waiting periods
required by Law shall have expired. No Consent obtained from any
Regulatory Authority which is necessary to consummate the transactions
contemplated hereby shall be conditioned or restricted in a manner
(including requirements relating to the raising of additional capital
or the disposition of Assets) which in the reasonable judgment of the
Board of Directors of either Party would so materially adversely impact
the economic or business benefits of the transactions contemplated by
this Agreement that, had such condition or requirement been known, such
Party would not, in its reasonable judgment, have entered into this
Agreement.
(c) Consents and Approvals. Other than filing the Articles of
Merger and receipt of the Certificate of Merger, each Party shall have
obtained any and all Consents required for consummation of the Merger
(other than those referred to in Section 9.1(b) of this Agreement or
listed in Section 9.1(c) of the Disclosure Schedule) or for the
preventing of any Default under any Contract or Permit of such Party
which, if not obtained or made, is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on such
Party.
(d) Legal Proceedings. No court or governmental or regulatory
authority of competent jurisdiction shall have enacted, issued,
promulgated, enforced, or entered any Law or Order (whether temporary,
preliminary, or permanent) or taken any other action which prohibits,
restricts, or makes illegal consummation of any of the transactions
contemplated by this Agreement.
(e) Registration Statement. The Registration Statement shall
have been declared effective under the 1933 Act, and no stop orders
suspending the effectiveness of the Registration Statement shall have
been issued, and no action, suit, proceeding, or investigation by the
SEC to suspend the effectiveness thereof shall have been initiated and
be continuing, and all necessary approvals under state securities Laws
or the 1933 Act or 1934 Act relating to the issuance or trading of the
shares of Riva Bancshares Common Stock issuable pursuant to the Merger
or the IPO shall have been received.
(f) Tax Matters. Each Party shall have received a written
opinion or opinions from Xxxxx, Xxxxxxxx & Xxxxxxx, LLP, and in a form
reasonably satisfactory to such Parties (the "Tax
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Opinion"), to the effect that (i) the Merger will constitute a
reorganization within the meaning of Section 368(a) of the Internal
Revenue Code and (ii) the exchange in the Merger of Premier Common
Stock for Riva Bancshares Common Stock will not give rise to gain or
loss to the shareholders of Premier with respect to such exchange
(except to the extent of any cash received). In rendering such Tax
Opinion, such counsel shall be entitled to rely upon representations of
officers of Premier and Riva Bancshares reasonably satisfactory in form
and substance to such counsel.
(g) Public Offering. Riva Bancshares shall have executed a
definitive underwriting agreement with a reputable and financially
capable investment banking firm, chosen in the sole discretion of the
Board of Directors of Riva Bancshares, providing for the firm
commitment underwriting of shares of Riva Bancshares Common Stock
having an aggregate gross purchase price of at least $25 million and
such shares shall, upon issuance, be available for trading on a
registered stock exchange or the National Market of the Nasdaq Stock
Market.
9.2 Conditions to Obligations of Riva Bancshares. The obligations
of Riva Bancshares to perform this Agreement and consummate the Merger and the
other transactions contemplated hereby are subject to the satisfaction of the
following conditions, unless waived by Riva Bancshares pursuant to Section
11.7(a) of this Agreement:
(a) Representations and Warranties. For purposes of this
Section 9.2(a), the accuracy of the representations and warranties of
Premier set forth in this Agreement shall be assessed as of the date of
this Agreement and as of the Effective Time with the same effect as
though all such representations and warranties had been made on and as
of the Effective Time (provided that representations and warranties
which are confined to a specified date shall speak only as of such
date). The representations and warranties of Premier set forth in
Section 5.3 of this Agreement shall be true and correct (except for
inaccuracies which are de minimus in amount). The representations and
warranties of Premier set forth in Sections 5.17, 5.18, 5.19, and 5.20
of this Agreement shall be true and correct in all material respects.
There shall not exist inaccuracies in the representations and
warranties of Premier set forth in this Agreement (including the
representations and warranties set forth in Sections 5.3, 5.17, 5.18,
5.19, and 5.20) such that the aggregate effect of such inaccuracies
has, or is reasonably likely to have, a Material Adverse Effect on
Premier and its Subsidiaries taken as a whole; provided that, for
purposes of this sentence only, those representations and warranties
which are qualified by references to "material" or "Material Adverse
Effect" shall be deemed not to include such qualifications.
(b) Performance of Agreements and Covenants. Each and all of
the agreements and covenants of Premier to be performed and complied
with pursuant to this Agreement and the other agreements contemplated
hereby prior to the Effective Time shall have been duly performed and
complied with in all respects.
(c) Certificates. Premier shall have delivered to Riva
Bancshares (i) a certificate, dated as of the Effective Time and signed
on its behalf by its chief executive officer and its chief financial
officer acting in their capacities as officers of Premier, to the
effect that the conditions of its obligations set forth in Section
9.2(a) and 9.2(b) of this Agreement have been satisfied, and (ii)
certified copies of resolutions duly adopted by Premier's Board of
Directors and shareholders evidencing the taking of all corporate
action necessary to authorize the execution, delivery, and performance
of this Agreement, and the consummation of the transactions
contemplated hereby, all in such reasonable detail as Riva Bancshares
and its counsel shall request.
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(d) Affiliates Agreements. Riva Bancshares shall have received
from each affiliate of Premier the affiliates agreements referred to in
Section 8.13 of this Agreement.
(e) Opinion of Counsel. Riva Bancshares shall have received a
written opinion of Suelthaus & Xxxxx, P.C., counsel to Premier, dated
as of the Effective Time, with respect to such matters and in such form
as shall be agreed upon between such firm and Riva Bancshares in
substantially the form that is attached as Exhibit 2.
9.3 Conditions to Obligations of Premier. The obligations of
Premier to perform this Agreement and consummate the Merger and the other
transactions contemplated hereby are subject to the satisfaction of the
following conditions, unless waived by Premier pursuant to Section 11.7(b) of
this Agreement:
(a) Representations and Warranties. For purposes of this
Section 9.3(a), the accuracy of the representations and warranties of
Riva Bancshares set forth in this Agreement shall be assessed as of the
date of this Agreement and as of the Effective Time with the same
effect as though all such representations and warranties had been made
on and as of the Effective Time (provided that representations and
warranties which are confined to a specified date shall speak only as
of such date). The representations and warranties of Riva Bancshares
set forth in Section 6.3 of this Agreement shall be true and correct
(except for inaccuracies which are de minimus in amount). The
representations and warranties of Riva Bancshares set forth in Section
6.11 of this Agreement shall be true and correct in all material
respects. There shall not exist inaccuracies in the representations and
warranties of Riva Bancshares set forth in this Agreement (including
the representations and warranties set forth in Sections 6.3 and 6.11)
such that the aggregate effect of such inaccuracies has, or is
reasonably likely to have, a Material Adverse Effect on Riva
Bancshares; provided that, for purposes of this sentence only, those
representations and warranties which are qualified by references to
"material" or "Material Adverse Effect" shall be deemed not to include
such qualifications.
(b) Performance of Agreements and Covenants. Each and all of
the agreements and covenants of Riva Bancshares to be performed and
complied with pursuant to this Agreement and the other agreements
contemplated hereby prior to the Effective Time shall have been duly
performed and complied with in all material respects.
(c) Certificates. Riva Bancshares shall have delivered to
Premier (i) a certificate, dated as of the Effective Time and signed on
its behalf by its chief executive officer and its chief financial
officer, to the effect that the conditions of its obligations set forth
in Section 9.3(a) and 9.3(b) of this Agreement have been satisfied, and
(ii) certified copies of resolutions duly adopted by Riva Bancshares'
Board of Directors evidencing the taking of all corporate action
necessary to authorize the execution, delivery, and performance of this
Agreement, and the consummation of the transactions contemplated
hereby, all in such reasonable detail as Premier and its counsel shall
request.
(d) Fairness Opinion. Premier shall have received from GRA
Xxxxxxxx White & Company, PC, a letter to the effect that, in the
opinion of such firm, the Exchange Ratio is fair, from a financial
point of view, to the holders of Premier Common Stock.
(e) Payment of Consideration. Riva Bancshares shall have
delivered to the Exchange Agent the consideration to be paid to holders
of the Premier Common Stock pursuant to Sections 3.1 and 3.4 of this
Agreement.
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(f) Opinion of Counsel. Premier shall have received a written
opinion of Xxxxx, Xxxxxxxx & Xxxxxxx, LLP, counsel to Riva Bancshares,
dated as of the Effective Time, with respect to such matters and in
such the form as shall be agreed upon between such firm and Premier in
substantially the form that is attached hereto as Exhibit 3.
(g) Underwriters to Perform. The underwriters in the IPO shall
have given their assurances that they are ready, willing, and able to
close on the IPO, and have the funds available to deliver the full
amount of the purchase price (less the underwriters' discount) for the
shares under the IPO, immediately following the consummation of the
Merger.
ARTICLE 10
TERMINATION
10.1 Termination. Notwithstanding any other provision of this
Agreement, and notwithstanding the approval of this Agreement by the
shareholders of Riva Bancshares and Premier, this Agreement may be terminated
and the Merger abandoned at any time prior to the Effective Time:
(a) By mutual written consent of the Board of Directors of Riva
Bancshares and the Board of Directors of Premier; or
(b) By the Board of Directors of either Riva Bancshares or
Premier (provided that the terminating Party is not then in breach of
any representation or warranty contained in this Agreement under the
applicable standard set forth in Section 9.2(a) of this Agreement in
the case of Premier and Section 9.3(a) in the case of Riva Bancshares
or in material breach of any covenant or other agreement contained in
this Agreement) in the event of an inaccuracy of any representation or
warranty of the other Party contained in this Agreement which cannot be
or has not been cured within 30 days after the giving of written notice
to the breaching Party of such inaccuracy and which inaccuracy would
provide the terminating Party the ability to refuse to consummate the
Merger under the applicable standard set forth in Section 9.2(a) of
this Agreement in the case of Premier and Section 9.3(a) of this
Agreement in the case of Riva Bancshares; or
(c) By the Board of Directors of either Riva Bancshares or
Premier in the event of a material breach by the other Party of any
covenant, agreement, or obligation contained in this Agreement which
breach cannot be or has not been cured within 30 days after the giving
of written notice to the breaching Party of such breach; or
(d) By the Board of Directors of either Riva Bancshares or
Premier in the event (i) any Consent of any Regulatory Authority
required for consummation of the Merger and the other transactions
contemplated hereby shall have been denied by final nonappealable
action of such authority or if any action taken by such authority is
not appealed within the time limit for appeal; or (ii) the shareholders
of either Riva Bancshares or Premier fail to vote their approval of
this Agreement and the transactions contemplated hereby as required by
the DGCL and GBCL, respectively; or
(e) By the Board of Directors of either Riva Bancshares or
Premier in the event that the Merger shall not have been consummated by
September 30, 1999, if the failure to consummate
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the transactions contemplated hereby on or before such date is not
caused by any breach of this Agreement by the Party electing to
terminate pursuant to this Section 10.1(e); or
(f) By Riva Bancshares in the event appraisal rights are
claimed, pursuant to the Dissent Provisions, by persons owning in the
aggregate more than 10% of the issued and outstanding Premier Common
Stock; or
(g) By the Board of Directors of either Riva Bancshares or
Premier (provided that the terminating Party is not then in breach of
any representation or warranty contained in this Agreement under the
applicable standard set forth in Section 9.2(a) of this Agreement in
the case of Premier and Section 9.3(a) in the case of Riva Bancshares
or in material breach of any covenant or other agreement contained in
this Agreement) in the event that any of the conditions precedent to
the obligations of such Party to consummate the Merger cannot be
satisfied or fulfilled by the date specified in Section 10.1(e) of this
Agreement; or
(h) By Premier, if at any time prior to the Effective Time, the
fairness opinion of GRA Xxxxxxxx White & Company, PC is withdrawn.
(i) By Premier if prior to the Effective Time, a corporation,
partnership, person, or other entity or group shall have made a bona
fide Acquisition Proposal that the Board of Directors of Premier
determines in its good faith judgment and in the exercise of its
fiduciary duties, with respect to legal matters on the written opinion
of legal counsel and as to financial matters on the written opinion of
GRA Xxxxxxxx White & Company, PC, or another investment banking firm of
national reputation, is more favorable to the shareholders of Premier
and that the failure to terminate this Agreement and accept such
alternative Acquisition Proposal would be inconsistent with the proper
exercise of such fiduciary duties.
10.2 Effect of Termination.
(a) In the event of the termination and abandonment of this
Agreement pursuant to Section 10.1 of this Agreement, this Agreement
shall become void and have no effect, except that (i) the provisions of
this Section 10.2 and Sections 8.6 and 11.1 of this Agreement shall
survive any such termination and abandonment, and (ii) a termination
pursuant to Sections 10.1(b) or 10.1(c) or 10.1 (f), of this Agreement
shall not relieve the breaching Party from liability for an uncured
willful breach of a representation, warranty, covenant, or agreement
giving rise to such termination; provided, further, that in the event
of any termination of this Agreement following the occurrence of an
Initial Triggering Event (as defined below) other than termination due
to: (A) the failure of Riva Bancshares to satisfy a condition to
closing, (B) determination of Riva Bancshares pursuant to Section
9.2(a) not to perform this Agreement, (C) withdrawal of the fairness
opinion of GRA Xxxxxxxx White & Company, PC (so long as such withdrawal
is not due to materially inaccurate or fraudulent information provided
by Premier to GRA Xxxxxxxx White & Company, PC), or (D) the failure to
satisfy the conditions set forth in Section 9.1 paragraphs (b), (d),
(e), (f) and (g), Riva Bancshares shall be entitled to a cash payment
from Premier in an amount equal to $200,000 upon the occurrence of any
Subsequent Triggering Event (as defined below) within twelve (12)
months following the date of such termination. In the event this
Agreement is terminated as a result of Riva Bancshares' or Premier's
failure to satisfy any of its representations, warranties or covenants
set forth herein in addition to any other claims or rights, the
non-terminating party shall reimburse the terminating party for its
reasonable out-of-pocket expenses relating to the Merger in an amount
not to exceed $50,000.
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(b) The term "Initial Triggering Event" shall mean any of the
following events or transactions occurring after the date of this
Agreement:
(i) Premier, without having received Riva Bancshares'
prior written consent, shall have entered into an agreement to
engage in an Acquisition Transaction (as hereinafter defined)
with any Person (the term "Person" for purposes of this
Section also having the meaning assigned thereto in Sections
3(a)(9) and 13(d)(3) of the 1934 Act, and the rules and
regulations thereunder) other than Riva Bancshares or the
Board of Directors of Premier shall have recommended that the
shareholders of Premier approve or accept any Acquisition
Transaction other than as contemplated by this Agreement. For
purposes of this Agreement, "Acquisition Transaction" shall
mean (x) a merger or consolidation, or any similar
transaction, involving Premier, (y) a purchase, lease or other
acquisition of all or substantially all of the assets or
deposits of Premier, or (z) a purchase or other acquisition
(including by way of merger, consolidation, share exchange or
otherwise) of securities representing 25% or more of the
voting power of Premier;
(ii) Any Person (excluding the officers, directors
and existing shareholders of Premier), other than Riva
Bancshares, acting in a fiduciary capacity, shall have
acquired beneficial ownership or the right to acquire
beneficial ownership of 15% or more of the outstanding Premier
Common Stock (the term "beneficial ownership" for purposes of
this Agreement having the meaning assigned thereto in Section
13(d) of the 1934 Act, and the rules and regulations
thereunder) and such Person does not vote such Premier Common
Stock in favor of this Agreement at the Shareholders' Meeting
or such meeting is not held or is canceled;
(iii) The Shareholders' Meeting shall not have been
held or shall have been canceled prior to termination of this
Agreement, or Premier, without having received Riva
Bancshares' prior written consent, shall have authorized,
recommended, proposed (or publicly announced its intention to
authorize, recommend or propose, or its interest in
authorizing, recommending or proposing) an agreement to engage
in an Acquisition Transaction, with any Person other than Riva
Bancshares;
(iv) Any Person other than Riva Bancshares shall have
made a bona fide proposal to any Premier Company or its
shareholders by public announcement or written communication
(a copy of which shall be provided to Riva Bancshares) to
engage in an Acquisition Transaction, which proposal has an
economic value to the shareholders of Premier equivalent to or
in excess of that of the Merger.
(v) After a proposal is made by a third party to any
Premier Company to engage in an Acquisition Transaction,
Premier shall have willfully and materially breached any
material covenant or obligation contained in this Agreement in
anticipation of engaging in an Acquisition Transaction, and
such breach would entitle Riva Bancshares to terminate this
Agreement and such breach is not cured; or
(vi) Any person other than Riva Bancshares, other
than in connection with a transaction to which Riva Bancshares
has given its prior written consent, shall have filed an
application or notice with the Board of Governors of the
Federal Reserve System or other
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federal or state bank regulatory authority, which application
or notice has been accepted for processing, for approval to
engage in an Acquisition Transaction.
(c) The term "Subsequent Triggering Event" shall mean any of
the following events or transactions occurring after the date hereof:
(i) The acquisition by any person (excluding the
officers, directors and existing shareholders of Premier) of
beneficial ownership of 50% or more of the then outstanding
Premier Common Stock; or
(ii) The closing of the Acquisition Transaction
described in clause (i) of subsection (b) of this Section 10.2,
except that the percentage referred to in clause (z) shall be
50%.
(d) Premier shall notify Riva Bancshares promptly upon the
occurrence of any Initial Triggering Event or Subsequent Triggering
Event.
10.3 Non-Survival of Representations and Covenants. The respective
representations and warranties of the Parties shall not survive the Effective
Time. All agreements of the Parties to this Agreement which by their terms are
to be performed following the Effective Time shall survive the Effective Time
until performed in accordance with their terms.
ARTICLE 11
MISCELLANEOUS
11.1 Definitions.
(a) Except as otherwise provided herein, the capitalized terms
set forth below shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Acquisition Proposal" with respect to a Party shall mean any
tender offer or exchange offer or any proposal for a merger,
acquisition of all of the stock or assets of, or other business
combination involving such Party or any of its Subsidiaries or any
proposal or offer to acquire in any manner a substantial equity
interest in, or a substantial portion of the assets of, such Party or
any of its material Subsidiaries (other than the transactions
contemplated or permitted by this Agreement).
"Affiliate" of a Person shall mean: (i) any other Person
directly, or indirectly through one or more intermediaries,
controlling, controlled by or under common control with such Person;
(ii) any officer, director, partner, employer, or direct or indirect
beneficial owner of any 10% or greater equity or voting interest of
such Person; or (iii) any other Person for which a Person described in
clause (ii) acts in any such capacity.
"Agreement" shall mean this Agreement and Plan of Merger,
including the Exhibits delivered pursuant hereto and incorporated
herein by reference.
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"Assets" of a Person shall mean all of the assets, properties,
businesses, and rights of such Person of every kind, nature, character,
and description, whether real, personal, or mixed, tangible or
intangible, accrued or contingent, or otherwise relating to or utilized
in such Person's business, directly or indirectly, in whole or in part,
whether or not carried on the books and records of such Person, and
whether or not owned in the name of such Person or any Affiliate of
such Person and wherever located.
"BHC Act" shall mean the Bank Holding Company Act of 1956, as
amended.
"Closing" shall have the meaning set forth in Section 1.2 of
this Agreement.
"Certificate of Merger" shall have the meaning set forth in
Section 1.3 of this Agreement.
"Consent" shall mean any consent, approval, authorization,
clearance, exemption, waiver, or similar affirmation by any Person
pursuant to any Contract, Law, Order, or Permit.
"Contract" shall mean any written agreement, commitment,
contract, note, bond, mortgage, indenture, instrument, lease,
obligation, license, or plan of any kind or character, or other
document to which any Person is a party or that is binding on any
Person or its capital stock or Assets.
"Default" shall mean (i) any breach or violation of or default
under any Contract, (ii) any occurrence of any event that with the
passage of time or the giving of notice or both would constitute a
breach or violation of or default under any Contract, or (iii) any
occurrence of any event that with or without the passage of time or the
giving of notice would give rise to a right to terminate or revoke,
change the current terms of, or renegotiate, or to accelerate,
increase, or impose any liability under, any Contract where, in any
such event, such default is reasonably likely to have a Material
Adverse Effect on a Party.
"Derivatives Contract" shall have the meaning set forth in
Section 5.20 of this Agreement.
"DGCL" shall have the meaning set forth in Section 1.1 of this
Agreement.
"Dissent Provisions" shall have the meaning set forth in
Section 3.1(d) of this Agreement.
"Dissenting Premier Shares" shall have the meaning set forth in
Section 3.1(d) of this Agreement.
"Dissenting Shareholders" shall have the meaning set forth in
Section 3.1(d) of this Agreement.
"Effective Time" shall have the meaning set forth in Section
1.3 of this Agreement.
"Environmental Laws" shall mean all Laws relating to pollution
or protection of human health or the environment (including ambient
air, surface water, ground water, land surface, or subsurface strata)
and which are administered, interpreted, or enforced by the United
States Environmental Protection Agency and state and local agencies
with jurisdiction over, and including common law in respect of,
pollution or protection of the environment, including the Comprehensive
Environmental Response Compensation and Liability Act, as amended, 42
U.S.C. 9601 et seq., the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. 6901 et seq., and other Laws
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relating to emissions, discharges, releases, or threatened releases of
any Hazardous Material, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport,
or handling of any Hazardous Material.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
"ERISA Affiliate" shall have the meaning set forth in Section
5.13(c) of this Agreement.
"Exchange Agent" shall have the meaning set forth in Section
4.1 of this Agreement.
"Exchange Ratio" shall have the meaning set forth in Section
3.1(c) of this Agreement.
"Exhibits" 1, 2, and 3 shall mean the Exhibits so marked,
copies of which are attached to this Agreement. Such Exhibits are
hereby incorporated by reference herein and made a part hereof, and may
be referred to in this Agreement and any other related instrument or
document without being attached hereto.
"GAAP" shall mean generally accepted accounting principles in
the United States, consistently applied during the periods involved
applicable to banks or bank holding companies, as the case may be.
"GBCL" shall have the meaning set forth in Section 1.1 of this
Agreement.
"Hazardous Material" shall mean (i) any hazardous substance,
hazardous material, hazardous waste, regulated substance, or toxic
substance (as those terms are defined by any applicable Environmental
Laws) and (ii) any chemicals, pollutants, contaminants, petroleum,
petroleum products, or oil (and specifically shall include asbestos
requiring abatement, removal, or encapsulation pursuant to the
requirements of governmental authorities and any polychlorinated
biphenyls).
"Indemnified Party" shall have the meaning set forth in Section
8.16 of this Agreement.
"Initial Public Offering" shall have the meaning set forth in
Section 8.1 of the Agreement.
"Internal Revenue Code" shall mean the Internal Revenue Code of
1986, as amended, and the rules and regulations promulgated thereunder.
"Knowledge" as used with respect to a Person (including
references to such Person being aware of a particular matter) shall
mean the personal knowledge of the chairman, president, chief financial
officer, chief accounting officer, chief credit officer, general
counsel, any assistant or deputy general counsel, or any senior or
executive vice president of such Person and the knowledge of any such
persons obtained or which would have been obtained from a reasonable
investigation, except as otherwise stated in this Agreement.
"Law" shall mean any code, law, ordinance, regulation,
reporting or licensing requirement, rule, or statute applicable to a
Person or its Assets, Liabilities, or business, including those
promulgated, interpreted, or enforced by any Regulatory Authority.
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"Lien" with respect to any Asset, shall mean any conditional
sale agreement, default of title, easement, encroachment, encumbrance,
hypothecation, infringement, lien, mortgage, pledge, reservation,
restriction, security interest, title retention, or other security
arrangement, or any adverse right or interest, charge, or claim of any
nature whatsoever of, on, or with respect to any property or property
interest, other than (i) Liens for current property Taxes not yet due
and payable, (ii) for depository institution Subsidiaries of a Party,
pledges to secure deposits, and (iii) other Liens incurred in the
ordinary course of the banking business.
"Litigation" shall mean any action, arbitration, cause of
action, claim, complaint, criminal prosecution, demand letter,
governmental or other examination or investigation, hearing, inquiry,
administrative or other proceeding, or notice by any Person alleging
potential liability.
"Loan Property" shall mean any property owned, leased, or
operated by the Party in question or by any of its Subsidiaries or in
which such Party or its Subsidiary holds a security or other interest
(including an interest in a fiduciary capacity), and, where required by
the context, includes the owner or operator of such property, but only
with respect to such property.
"Material Adverse Effect" on a Party shall mean an event,
change, or occurrence which, individually or together with any other
event, change, or occurrence, (i) would in the aggregate result in an
adverse impact of $125,000 or more on the financial position or results
of operations of such Party, or (ii) would impair the ability of such
Party to perform its obligations under this Agreement or to consummate
the Merger or the other transactions contemplated by this Agreement,
provided that "Material Adverse Effect" shall not be deemed to include
the impact of (a) changes in banking and similar Laws of general
applicability or interpretations thereof by courts or governmental
authorities, (b) changes in GAAP or regulatory accounting principles
generally applicable to banks and their holding companies, (c) actions
and omissions of a Party (or any of its Subsidiaries) taken with the
prior informed consent of the other Party in contemplation of the
transactions contemplated hereby, and (d) the Merger and compliance
with the provisions of this Agreement on the operating performance of
the Parties, (e) changes in the general economic conditions, (f)
changes in the securities markets, or (g) changes generally affecting
the financial institution industry in general, or the banking industry
in Missouri or in the Jefferson City of Columbia, Missouri areas
specifically. When used with respect to Premier, a Material Adverse
Effect shall exist only if it exists with respect to Premier and its
subsidiaries taken as a whole.
"Merger" shall have the meaning set forth in the Preamble of
this Agreement.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"NASDAQ" shall mean the Nasdaq Stock Market, Inc.
"Order" shall mean any decree, injunction, judgment, order,
decision or award, ruling, or writ of any federal, state, local, or
foreign or other court, arbitrator, mediator, tribunal, administrative
agency, or Regulatory Authority.
"Participation Facility" shall mean any facility or property in
which the Party in question or any of its Subsidiaries participates in
the management and, where required by the context, said term means the
owner or operator of such facility or property, but only with respect
to such facility or property.
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"Party" shall mean either Riva Bancshares or Premier, and
"Parties" shall mean collectively, Riva Bancshares and Premier.
"Permit" shall mean any federal, state, local, and foreign
governmental approval, authorization, certificate, easement, filing,
franchise, license, notice, permit, or right to which any Person is a
party or that is or may be binding upon or inure to the benefit of any
Person.
"Person" shall mean a natural person or any legal, commercial,
or governmental entity, such as, but not limited to, a corporation,
general partnership, joint venture, limited partnership, limited
liability company, trust, business association, group acting in
concert, or any person acting in a representative capacity.
"Premier" shall have the meaning set forth in the first
paragraph of this Agreement.
"Premier Benefits Plans" shall have the meaning set forth in
Section 5.13(a) of this Agreement.
"Premier Capital Stock" shall mean, collectively, Premier
Common Stock and any other class or series of capital stock of Premier.
"Premier Common Stock" shall mean the $1.00 par value common
stock of Premier.
"Premier Companies" shall mean, collectively, Premier and all
Premier Subsidiaries.
"Premier Contracts" shall have the meaning set forth in Section
5.14 of this Agreement.
"Premier ERISA Plan" shall have the meaning set forth in
Section 5.13(a) of this Agreement.
"Premier Financial Statements" shall mean (i) the consolidated
balance sheets (including related notes and schedules, if any) of
Premier as of March 31, 1999, and as of December 31, 1998, 1997 and
1996, and the related statements of income, changes in shareholders'
equity, and cash flows (including related notes and schedules, if any)
for the three months ended March 31, 1999, and for each of the three
fiscal years ended December 31, 1998, 1997, and 1996, as filed by
Premier with the Board of Governors of the Federal Reserve System and
(ii) the consolidated balance sheets of Premier (including related
notes and schedules, if any) and related statements of income, changes
in shareholders' equity, and cash flows (including related notes and
schedules, if any) included in Premier's financial statements filed and
published in accordance with applicable federal regulations with
respect to periods ended subsequent to December 31, 1998.
"Proxy Statement" shall mean the proxy statement used by
Premier to solicit the approval of its shareholders of the transactions
contemplated by this Agreement, which shall include the prospectus of
Riva Bancshares relating to the issuance of Riva Bancshares Common
Stock to holders of Premier Common Stock.
"Registration Statement" shall mean the Registration Statement
on Form S-1, or other appropriate form, including any pre-effective or
post-effective amendments or supplements thereto, filed with the SEC by
Riva Bancshares under the 1933 Act with respect to the shares of Riva
Bancshares Common Stock to be issued to the shareholders of Premier in
connection with the transactions contemplated by this Agreement and
with respect to the IPO.
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"Regulatory Authorities" shall mean, collectively, the Board of
Governors of the Federal Reserve System, the Federal Deposit Insurance
Corporation, the SEC, the Missouri Division of Finance, the NASD,
NASDAQ and all state regulatory agencies having jurisdiction over the
Parties and their respective Subsidiaries.
"Rights" shall mean all arrangements, calls, Contracts,
options, rights to subscribe to, scrip, understandings, warrants, or
other binding obligations of any character whatsoever relating to, or
securities or rights convertible into or exchangeable for, shares of
the capital stock of a Person or any Contract, commitments or other
arrangements by which a Person is or may be bound to issue additional
shares of its capital stock or options, warrants, rights to purchase or
acquire any additional shares of its capital stock, or other Rights.
"Riva Bancshares" shall have the meaning set forth in the first
paragraph of this Agreement.
"Riva Bancshares Capital Stock" shall mean, collectively, Riva
Bancshares Common Stock, Riva Bancshares Preferred Stock, and any other
class or series of capital stock of Riva Bancshares.
"Riva Bancshares Common Stock" shall mean the $.01 par value
per share common stock of Riva Bancshares.
"Riva Bancshares Financial Statements" shall mean the (i)
audited consolidated balance sheets (including related notes and
schedules, if any) of Riva Bancshares as of December 31, 1998, and the
related audited statements of income, changes in stockholders' equity,
and cash flows (including related notes and schedules, if any) for the
fiscal year then ended, and (ii) the unaudited consolidated balance
sheets (including related notes and schedules, if any) of Riva
Bancshares as of March 31, 1999, and the related unaudited statements
of income, changes in stockholders' equity, and cash flows (including
related notes and schedules, if any) for the portion of the fiscal year
then ended.
"Riva Bancshares Preferred Stock" shall mean the $.01 par value
per share preferred stock of Riva Bancshares.
"SEC" shall mean the Securities and Exchange Commission.
"SEC Documents" shall mean all forms, proxy statements,
registration statements, reports, schedules, and other documents filed,
or required to be filed, by a Party or any of its Subsidiaries with any
Regulatory Authority pursuant to the Securities Laws.
"Securities Laws" shall mean the 1933 Act, the 1934 Act, the
Investment Company Act of 1940, as amended, the Investment Advisors Act
of 1940, as amended, the Trust Indenture Act of 1939, as amended, and
the rules and regulations of any Regulatory Authority promulgated
thereunder.
"Shareholders' Meeting" shall mean the meeting of the
shareholders of Premier to be held pursuant to Section 8.1 of this
Agreement, including any adjournment or adjournments thereof.
"Subsidiaries" shall mean all corporations, banks,
associations, or other entities of which the entity in question owns or
controls 50% or more of the outstanding equity securities, either
directly
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or through an unbroken chain of entities as to each of which 50% or
more of the outstanding equity securities is owned directly or
indirectly by its parent; provided, however, there shall not be
included in this definition any such entity acquired through
foreclosure or any such entity the equity securities of which are owned
or controlled in a fiduciary capacity.
"Surviving Corporation" shall mean the surviving corporation
resulting from the Merger.
"Tax" or "Taxes" shall mean all federal, state, local, and
foreign taxes, charges, fees, levies, imposts, duties, or other
assessments, including income, gross receipts, excise, employment,
sales, use, transfer, license, payroll, franchise, severance, stamp,
occupation, windfall profits, environmental, federal highway use,
commercial rent, customs duties, capital stock, paid-up capital,
profits, withholding, Social Security, single business and
unemployment, disability, real property, personal property,
registration, ad valorem, value added, alternative or add-on minimum,
estimated, or other tax or governmental fee of any kind whatsoever,
imposed or required to be withheld by the United States or any state,
local, foreign government or subdivision or agency thereof, including
any interest, penalties or additions thereto.
"Tax Opinion" shall have the meaning set forth in Section
9.1(f) of this Agreement.
"Taxable Period" shall mean any period prescribed by any
governmental authority, including the United States or any state,
local, foreign government or subdivision or agency thereof for which a
Tax Return is required to be filed or Tax is required to be paid.
"Tax Return" shall mean any report, return, information return,
or other information required to be supplied to a taxing authority in
connection with Taxes, including any return of an affiliated or
combined or unitary group that includes a Party or its Subsidiaries.
(b) Any singular term in this Agreement shall be deemed to
include the plural, and any plural term the singular. Whenever the
words "include," "includes," or "including" are used in this Agreement,
they shall be deemed followed by the words "without limitation."
11.2 Expenses.
(a) Except as otherwise provided in this Section 11.2 and in
Section 10.2, each of Riva Bancshares and Premier shall bear and pay
all direct costs and expenses incurred by it or on its behalf in
connection with the transactions contemplated hereunder, including
filing, registration, and application fees, printing fees, and fees and
expenses of its own financial or other consultants, investment bankers,
accountants, and counsel.
(b) Nothing contained in this Section 11.2 shall constitute or
shall be deemed to constitute liquidated damages for the willful breach
by a Party of the terms of this Agreement or otherwise limit the rights
of the nonbreaching Party.
11.3 Brokers and Finders. Each of the Parties represents and
warrants that neither it nor any of its officers, directors, employees, or
Affiliates has employed any broker or finder in connection with this Agreement
or the transactions contemplated hereby. In the event of a claim by any broker
or finder based upon his or its representing or being retained by or allegedly
representing or being retained by Riva Bancshares or Premier, each of Riva
Bancshares and Premier, as the case may be, agrees to indemnify and hold the
other Party harmless of and from any Liability in respect of any such claim.
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11.4 Entire Agreement. Except for the Confidentiality Agreement and
except as otherwise expressly provided herein, this Agreement constitutes the
entire agreement between the Parties with respect to the transactions
contemplated hereunder and supersedes all prior arrangements or understandings
with respect thereto, written or oral.
11.5 Amendments. To the extent permitted by Law, this Agreement may
be amended by a subsequent writing signed by each of the Parties upon the
approval of the Boards of Directors of each of the Parties, whether before or
after shareholder approval of this Agreement has been obtained; provided, that
after any such approval by the shareholders of either Riva Bancshares or
Premier, there shall be made no amendment that reduces or modifies in any
material respect the consideration to be received by holders of Premier Common
Stock, without the further approval of such shareholders.
11.6 Obligations of Riva Bancshares. Whenever this Agreement
requires Riva Bancshares (including the Surviving Corporation) to take any
action, such requirement shall be deemed to include an undertaking by Riva
Bancshares to cause any future Riva Bancshares Subsidiaries to take such action.
11.7 Waivers.
(a) Prior to or at the Effective Time, Riva Bancshares, acting
through its Board of Directors, chief executive officer, president or
other authorized officer, shall have the right to waive any default in
the performance of any term of this Agreement by Premier, to waive or
extend the time for the compliance or fulfillment by Premier of any and
all of its obligations under this Agreement, and to waive any or all of
the conditions precedent to the obligations of Riva Bancshares under
this Agreement, except any condition which, if not satisfied, would
result in the violation of any Law. No such waiver shall be effective
unless in writing signed by a duly authorized officer of Riva
Bancshares.
(b) Prior to or at the Effective Time, Premier, acting through
its Board of Directors, chief executive officer, president or other
authorized officer, shall have the right to waive any default in the
performance of any term of this Agreement by Riva Bancshares, to waive
or extend the time for the compliance or fulfillment by Riva Bancshares
of any and all of its obligations under this Agreement, and to waive
any or all of the conditions precedent to the obligations of Premier
under this Agreement, except any condition which, if not satisfied,
would result in the violation of any Law. No such waiver shall be
effective unless in writing signed by a duly authorized officer of
Premier.
(c) The failure of any Party at any time or times to require
performance of any provision hereof shall in no manner affect the right
of such Party at a later time to enforce the same or any other
provision of this Agreement. No waiver of any condition or of the
breach of any term contained in this Agreement in one or more instances
shall be deemed to be or construed as a further or continuing waiver of
such condition or breach or a waiver of any other condition or of the
breach of any other term of this Agreement.
11.8 Assignment. Except as expressly contemplated hereby, neither
this Agreement nor any of the rights, interests, or obligations hereunder shall
be assigned by any Party hereto (whether by operation of Law or otherwise)
without the prior written consent of the other Party. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of, and be
enforceable by the Parties and their respective successors and assigns.
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11.9 Notices. All notices or other communications which are required
or permitted hereunder shall be in writing and sufficient if delivered by hand,
by facsimile transmission, by registered or certified mail, postage pre-paid, or
by courier or overnight carrier, to the persons at the addresses set forth below
(or at such other address as may be provided hereunder), and shall be deemed to
have been delivered as of the date so delivered:
Premier: Premier Bancshares, Inc.
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxxxx Xxxx, Xxxxxxxx 00000
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxxx, Chairman
and Xxxxx X. Xxxxx, President and
Chief Executive Officer
Copy to Counsel: Suelthaus & Xxxxx, P.C.
0000 Xxxxxxx Xxxxxxxxx, Xxxxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Riva Bancshares: Riva Bancshares, Inc.
00000 Xxxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, President and
Chief Executive Officer
Copy to Counsel: Xxxxx, Xxxxxxxx & Xxxxxxx, XXX
Xxxxx 0000, Xxxxxxxxx XX
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Copies to Counsel shall not constitute notice.
11.10 Governing Law. This Agreement shall be governed by and
construed in accordance with the Laws of the State of Missouri, without regard
to any applicable principals of conflicts of laws, except to the extent that the
Laws of the United States govern the consummation of the Merger.
11.11 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
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11.12 Captions. The captions contained in this Agreement are for
reference purposes only and are not part of this Agreement.
11.13 Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
11.14 Enforcement of Agreement. The Parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement was not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the Parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the United
States or any state having jurisdiction, this being in addition to any other
remedy to which they are entitled at law or in equity.
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IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be
executed on its behalf and attested by officers thereunto as of the day and year
first above written.
RIVA BANCSHARES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
PREMIER BANCSHARES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chairman of the Board
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